79R11177 CLG-F
By: Uresti, Hupp, Reyna, Solis, Naishtat H.B. No. 920
Substitute the following for H.B. No. 920:
By: Eissler C.S.H.B. No. 920
A BILL TO BE ENTITLED
AN ACT
relating to protective and guardianship services for elderly and
disabled persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. ADULT PROTECTIVE SERVICES
SECTION 1.01. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.0315 to read as follows:
Sec. 40.0315. INVESTIGATION UNIT FOR ADULT PROTECTIVE
SERVICES. (a) The adult protective services division of the
department shall maintain an investigation unit to investigate
allegations of abuse, neglect, and exploitation of elderly and
disabled persons reported to the division.
(b) An investigator in the unit shall determine whether an
elderly or disabled person who is the subject of a report made under
Section 48.051(a) may have suffered from abuse, neglect, or
exploitation as a result of the criminal conduct of another person.
If the investigator determines that criminal conduct may have
occurred, the investigator shall immediately notify the
appropriate law enforcement agency.
SECTION 1.02. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Sections 40.0322 and 40.0323 to read as
follows:
Sec. 40.0322. QUALIFICATIONS FOR ADULT PROTECTIVE SERVICES
PERSONNEL; RECRUITMENT. (a) In hiring department employees whose
duties include providing services as part of, or relating to, the
provision of adult protective services directly to an elderly or
disabled person, the commissioner shall ensure that the department
hires, as often as possible, persons with professional credentials
related to adult protective services, including persons who are
licensed master social workers, as defined by Section 505.002,
Occupations Code, or licensed professional counselors.
(b) Subject to the availability of funds, the executive
commissioner by rule shall develop and the department shall
implement a recruiting program designed to attract and retain for
employment in the adult protective services division persons with
professional credentials described by Subsection (a).
(c) Subject to the availability of funds, the executive
commissioner by rule shall develop and the department shall
implement an incentive program to encourage each department
employee whose duties include the duties described by Subsection
(a) to obtain professional credentials described by that subsection
if the employee does not have those credentials.
Sec. 40.0323. COORDINATION REGARDING RECRUITMENT FOR AND
CURRICULUM OF CERTAIN CERTIFICATE OR DEGREE PROGRAMS. The
department and the Texas Higher Education Coordinating Board
jointly shall develop strategies to:
(1) promote certificate or degree programs in the
fields of social work and psychology to individuals enrolled in or
admitted to institutions of higher education in this state; and
(2) ensure that persons receiving a certificate or
degree, including a graduate degree, in social work or psychology
from an institution of higher education in this state have the
knowledge and skills regarding protective services that are
provided directly to elderly or disabled persons and necessary for
successful employment by the adult protective services division of
the department.
SECTION 1.03. Subchapter B, Chapter 40, Human Resources
Code, is amended by adding Section 40.035 to read as follows:
Sec. 40.035. TRAINING PROGRAM FOR ADULT PROTECTIVE
SERVICES; CONTINUING EDUCATION. (a) The department shall develop
and implement a training program that each newly hired or assigned
department employee must complete before:
(1) initiating an investigation of a report of alleged
abuse, neglect, or exploitation of an elderly or disabled person
under Chapter 48; or
(2) providing protective services to elderly or
disabled persons under that chapter.
(b) The training program must:
(1) provide the person with appropriate comprehensive
information regarding:
(A) the incidence and types of reports of abuse,
neglect, and exploitation of elderly or disabled persons that are
received by the department, including information concerning false
reports; and
(B) the use and proper implementation of:
(i) the risk assessment criteria developed
under Section 48.004;
(ii) the criteria used by caseworkers to
determine whether elderly or disabled persons lack capacity to
consent to receive protective services; and
(iii) the legal procedures available under
Chapter 48 for the protection of elderly or disabled persons,
including the procedures for obtaining a court order for emergency
protective services under Section 48.208;
(2) include best practices for management of a case
from the intake process to the provision of protective services,
including criteria that specify the circumstances under which an
employee should:
(A) consult a supervisor regarding a case; or
(B) refer an elderly or disabled person to an
appropriate public agency or community service provider for
guardianship or other long-term services after the delivery of
protective services to that person has been completed;
(3) provide appropriate specialized training in any
necessary topics, including:
(A) investigation of suspected identity theft
and other forms of financial exploitation and suspected
self-neglect; and
(B) establishment and maintenance of working
relationships with community organizations and other local
providers who provide services to elderly and disabled persons;
(4) include on-the-job training, which must require
another department caseworker with more experience to accompany and
train the caseworker in the field for a three-month period;
(5) provide for the development of individualized
training plans;
(6) include training in working with law enforcement
agencies and the court system when legal intervention is sought for
investigations or emergency orders; and
(7) include testing, progress reports, or other
evaluations to assess the performance of trainees.
(c) The department at least annually shall provide
comprehensive case management training to supervisors of
department employees who conduct investigations under Chapter 48.
The training must be designed to enable the supervisors to provide
guidance on investigations of reports of alleged abuse, neglect, or
exploitation that are complex or present unique problems.
(d) The department shall develop and implement appropriate
continuing education programs for employees of the adult protective
services division who have completed initial training under this
section. The continuing education programs must be designed to
provide an annual update regarding changes in:
(1) adult protective services division policies and
procedures; and
(2) applicable law, including statutory changes
affecting the adult protective services division or elderly or
disabled persons served by the division.
(e) A department employee required to participate in a
continuing education program under this section must complete the
program at least once each calendar year.
(f) The department shall:
(1) make curriculum developed for a training or
continuing education program under this section readily available
to department employees in written form; and
(2) periodically revise a training and continuing
education program established under this section as necessary to
satisfy training needs identified by the department or department
employees.
SECTION 1.04. (a) Subchapter C, Chapter 40, Human
Resources Code, is amended by adding Section 40.0515 to read as
follows:
Sec. 40.0515. QUALITY ASSURANCE PROGRAM FOR ADULT
PROTECTIVE SERVICES; QUARTERLY REPORTS. (a) The department shall
develop and implement a quality assurance program for adult
protective services provided by or on behalf of the department.
(b) In developing the program, the department shall
establish:
(1) client-centered outcome measures for each of the
following functions of the adult protective services program:
(A) intake process;
(B) investigations;
(C) risk assessment determinations; and
(D) delivery of protective services;
(2) minimum job performance standards for personnel
and each work department of the adult protective services division
of the department; and
(3) procedures for conducting periodic performance
reviews to monitor compliance with the standards established under
Subdivision (2).
(c) The department shall promptly address a person's or work
department's failure to meet minimum job performance standards
established under Subsection (b)(2):
(1) by issuing to the person or work department, as
appropriate, a corrective action plan detailing the actions
required to comply with the standards; or
(2) if necessary, through disciplinary action,
including a person's demotion or discharge, for repeated failure to
meet the standards.
(d) Each employee of the adult protective services division
must receive a performance evaluation required by Section 40.032(c)
at least annually. The department shall ensure that disciplinary
or other corrective action is taken against a supervisor or other
managerial employee who is required to conduct a performance
evaluation and fails to complete that evaluation in a timely
manner.
(e) A summary of the findings of outcome measures
established and performance reviews conducted under this section
must be reported to regional directors and other senior management
employees of the adult protective services division.
(f) Each fiscal quarter the department shall file with the
governor and the presiding officer of each house of the legislature
a report that includes:
(1) a comprehensive review of the adult protective
services division's overall performance during the preceding
quarter; and
(2) a summary of the adult protective services
division's performance during the preceding quarter on each of the
outcome measures established under Subsection (b)(1).
(b) The Department of Family and Protective Services shall
submit the initial report required under Section 40.0515, Human
Resources Code, as added by this section, not later than February 1,
2006.
SECTION 1.05. Subchapter C, Chapter 40, Human Resources
Code, is amended by adding Section 40.0527 to read as follows:
Sec. 40.0527. PUBLIC AWARENESS. (a) The executive
commissioner 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.
(b) The department may use mass communications media, the
Internet, publications, or other means of public education in
conducting the campaign.
(c) A public awareness strategy implemented for the program
must include:
(1) the provision of information on the incidence and
types of reports of abuse, neglect, and exploitation of elderly or
disabled persons; and
(2) practices that can reduce the incidences of abuse,
neglect, and exploitation of elderly or disabled persons in this
state.
(d) The department shall enlist the support and assistance
of civic, philanthropic, and public service organizations in the
performance of the duties imposed under this section.
SECTION 1.06. Subchapter A, Chapter 48, Human Resources
Code, is amended by adding Section 48.004 to read as follows:
Sec. 48.004. RISK ASSESSMENT. The executive commissioner
by rule shall develop and maintain risk assessment criteria for use
by department personnel in determining whether an elderly or
disabled person is in a state of abuse, neglect, or exploitation and
needs protective services. The criteria must provide for a
comprehensive assessment of the person's:
(1) environmental, physical, medical, mental health,
and financial condition; and
(2) social interaction and support.
SECTION 1.07. Section 48.151, Human Resources Code, is
amended by adding Subsection (c-1) to read as follows:
(c-1) The department shall develop and implement a system to
ensure that, to the greatest extent possible, investigations
conducted by the department that involve especially complex issues
of abuse, neglect, or exploitation, such as issues associated with
identity theft and other forms of financial exploitation, are
assigned to personnel who have experience and training in those
issues.
SECTION 1.08. Sections 48.205(a) and (b), Human Resources
Code, are amended to read as follows:
(a) Subject to the availability of funds, the [The]
department shall [may] provide direct protective services or
contract with protective services agencies for the provision
[provisions] of those services.
(b) The department shall use existing resources and
services of public and private agencies in providing protective
services. If the department does not have existing resources to
provide direct protective services to elderly or disabled persons,
the department, subject to the availability of funds, shall
contract with protective services agencies for the provision of
those services, especially to elderly or disabled persons residing
in rural or remote areas of this state or not previously served by
the department.
SECTION 1.09. Section 48.208, Human Resources Code, is
amended by amending Subsections (b), (c), and (e) and adding
Subsections (c-1), (c-2), and (e-1) to read as follows:
(b) If the department determines that an elderly or disabled
person is suffering from abuse, neglect, or exploitation presenting
a threat to life or physical safety, that the person lacks capacity
to consent to receive protective services, and that no consent can
be obtained, the department shall [may] petition the probate or
statutory or constitutional county court that has probate
jurisdiction in the county in which the elderly or disabled person
resides for an emergency order authorizing protective services.
(c) The petition shall be verified and shall include:
(1) the name, age, and address of the elderly or
disabled person who needs protective services;
(2) the nature of the abuse, neglect, or exploitation;
(3) the services needed; and
(4) a [medical] report signed by a physician,
physician assistant, registered nurse, or advanced practice nurse
that contains the information required by Subsection (c-1) or a
report signed by a psychologist licensed under Chapter 501,
Occupations Code, that contains the information required by
Subsection (c-2), [stating that the person is suffering from abuse,
neglect, or exploitation presenting a threat to life or physical
safety and stating that the person is physically or mentally
incapable of consenting to services] unless the court finds that an
immediate danger to the health or safety of the elderly or disabled
person exists and there is not sufficient time to obtain the
[medical] report.
(c-1) A report obtained from a physician, physician
assistant, registered nurse, or advanced practice nurse under
Subsection (c)(4) must state that the person:
(1) is suffering from abuse, neglect, or exploitation
presenting a threat to life or physical safety; and
(2) is physically or mentally incapable of consenting
to services.
(c-2) A report obtained from a licensed psychologist under
Subsection (c)(4) must state that the person:
(1) is suffering from abuse, neglect, or exploitation
presenting a threat to life or physical safety; and
(2) is mentally incapable of consenting to services.
(e) The emergency order expires at the end of 72 hours from
the time of the order unless:
(1) the 72-hour period ends on a Saturday, Sunday, or
legal holiday in which event the order is automatically extended to
4 p.m. on the first succeeding business day; or
(2) the court extends the order as provided by
Subsection (e-1).
(e-1) The court may extend an emergency order issued under
this section once for an additional period of not more than 30 days
if the court receives a medical report signed by a physician stating
that the person is physically or mentally incapable of consenting
to services and the court, after a hearing, finds that the immediate
danger to the health or safety of the elderly or disabled person
continues to exist. The medical report must be based on an
examination the physician performed not earlier than the date the
court granted the initial emergency order. An extension order [may
be renewed for not more than 14 additional days. A renewal order]
that ends on a Saturday, Sunday, or legal holiday is automatically
extended to 4 p.m. on the first succeeding business day. The court
may shorten the term of [modify] or terminate the emergency order on
petition of the department, the elderly or disabled [incapacitated]
person, or any person interested in the elderly or disabled
person's [his] welfare.
SECTION 1.10. Section 531.0162, Government Code, is amended
by adding Subsections (c) and (d) to read as follows:
(c) Subject to available appropriations, the commission
shall use technology whenever possible in connection with the adult
protective services program of the Department of Family and
Protective Services to:
(1) provide for automated collection of information
necessary to evaluate program effectiveness using systems that
integrate collection of necessary information with other routine
duties of caseworkers and other service providers; and
(2) consequently reduce the time that caseworkers and
other service providers are required to use in gathering and
reporting information necessary for program evaluation.
(d) The commission shall include representatives of the
private sector in the technology planning process used to determine
appropriate technology for the adult protective services program of
the Department of Family and Protective Services.
SECTION 1.11. (a) Section 531.048, Government Code, is
amended by adding Subsection (g) to read as follows:
(g) The executive commissioner shall develop and, subject
to the availability of funds, implement a caseload management
reduction plan to reduce, not later than January 1, 2011, caseloads
for caseworkers employed by the adult protective services division
of the Department of Family and Protective Services to a level that
does not exceed professional caseload standards by more than five
cases per caseworker. The plan must provide specific annual
targets for caseload reduction.
(b) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
adopt rules establishing the caseload management reduction plan as
provided by Section 531.048(g), Government Code, as added by this
section.
(c) Not later than December 31 of each even-numbered year,
the executive commissioner of the Health and Human Services
Commission shall prepare a report regarding the implementation of
the plan provided by Section 531.048(g), Government Code, as added
by this section. The report must include an assessment of the
effect of the plan on reducing caseloads and the amount of funding
necessary to fully implement the plan during the next biennium. The
executive commissioner shall submit the report to the governor, the
lieutenant governor, the speaker of the house of representatives,
and the presiding officer of each house and senate standing
committee having jurisdiction over adult protective services.
SECTION 1.12. PILOT PROGRAM FOR MONITORING CERTAIN
UNLICENSED LONG-TERM CARE FACILITIES. (a) In this section:
(1) "Disabled person" has the meaning assigned by
Section 48.002, Human Resources Code.
(2) "Elderly person" has the meaning assigned by
Section 48.002, Human Resources Code.
(3) "Long-term care facility" means:
(A) a nursing home or related institution;
(B) an assisted living facility;
(C) an ICF-MR, as defined by Section 531.002,
Health and Safety Code;
(D) a community home subject to Chapter 123,
Human Resources Code; or
(E) any other residential arrangement that
provides care to four or more adults who are unrelated to the
proprietor of the establishment.
(b) The executive commissioner of the Health and Human
Services Commission by rule shall develop and implement a pilot
program in which local task forces composed of health care
providers, representatives from governmental entities, and local
government officials are created to:
(1) identify, through a coordination of efforts and
resources, persons establishing or operating:
(A) long-term care facilities providing personal
care services, health-related services, or other care to elderly or
disabled persons without being licensed or providing disclosures as
required by state law; or
(B) residential facilities or arrangements
providing personal care services or other care in violation of
state law to three or fewer elderly or disabled persons who are
unrelated to the proprietor of the establishment; and
(2) take appropriate action necessary to:
(A) report the facilities or arrangements
described by Subdivision (1) of this subsection to the appropriate
state regulatory agencies or local law enforcement agencies;
(B) assist, whenever practicable, a long-term
care facility described by Subdivision (1)(A) of this subsection in
obtaining the appropriate licensure or making the appropriate
disclosures on request of the facility; and
(C) assist, if it is feasible and practicable, a
facility or arrangement described by Subdivision (1)(B) of this
subsection in complying with applicable regulatory requirements of
state or local law.
(c) Not later than January 1, 2006, the executive
commissioner of the Health and Human Services Commission shall
implement the pilot program in at least one rural area and one urban
area of this state.
(d) Not later than January 1, 2007, the Health and Human
Services Commission shall submit a report on the status and
progress of the pilot program to the governor, the lieutenant
governor, the speaker of the house of representatives, and the
presiding officer of each house and senate standing committee
having jurisdiction over adult protective services. The report
must include a recommendation regarding the advisability of
expanding the pilot program statewide.
(e) This section expires September 1, 2007.
ARTICLE 2. GUARDIANSHIP AND RELATED SERVICES
SECTION 2.01. The heading to Subchapter E, Chapter 48,
Human Resources Code, is amended to read as follows:
SUBCHAPTER E. PROVISION OF SERVICES; [GUARDIANSHIP SERVICES;]
EMERGENCY PROTECTION
SECTION 2.02. Section 48.209, Human Resources Code, is
amended to read as follows:
Sec. 48.209. REFERRAL FOR GUARDIANSHIP SERVICES
[GUARDIANSHIPS]. (a) The department shall refer an individual to
the Department of Aging and Disability Services for guardianship
services under Subchapter E, Chapter 161, if the individual is:
(1) a minor in the conservatorship of the department
who:
(A) is 16 years of age or older; and
(B) the department has reason to believe will,
because of a physical or mental condition, be substantially unable
to provide for the individual's own food, clothing, or shelter, to
care for the individual's own physical health, or to manage the
individual's own financial affairs when the individual becomes an
adult; or
(2) an elderly or disabled person who:
(A) has been found by the department to be in a
state of abuse, neglect, or exploitation; and
(B) the department has reason to believe is an
incapacitated person as defined by Section 601(14)(B), Texas
Probate Code.
(b) Notwithstanding Subsection (a), if a less restrictive
alternative to guardianship is appropriate and available for the
individual, the department shall pursue that alternative instead of
making a referral to the Department of Aging and Disability
Services for guardianship services.
(c) The department and the Department of Aging and
Disability Services shall enter into a memorandum of understanding
that sets forth in detail the roles and duties of each agency
regarding the referral for guardianship services under Subsection
(a) and the provision of guardianship services to individuals under
Subchapter E, Chapter 161.
(d) Nothing in this section shall prohibit the department
from also making 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 the department to
notify the court of any individuals who may be appropriate for a
court-initiated guardianship proceeding under Section 683, Texas
Probate Code. In making a referral under this subsection and if
requested by the court, the department shall, to the extent allowed
by law, provide the court with all relevant information in the
department's records relating to the individual. The court, as
part of this process, may not require the department to:
(1) perform the duties of a guardian ad litem or court
investigator as prescribed by Section 683, Texas Probate Code; or
(2) gather additional information not contained in the
department's records.
(e) The department may not be appointed to serve as
temporary or permanent guardian for any individual. [(a) The
department shall file an application under Section 682 or 875,
Texas Probate Code, to be appointed guardian of the person or estate
or both of an individual who is a minor, is a conservatee of the
department, and, because of a physical or mental condition, will be
substantially unable to provide food, clothing, or shelter for
himself or herself, to care for the individual's own physical
health, or to manage the individual's own financial affairs when
the individual becomes an adult. If a less restrictive alternative
to guardianship is available for an individual, the department
shall pursue the alternative instead of applying for appointment as
a guardian.
[(b) As a last resort, the department may apply to be
appointed guardian of the person or estate of an elderly or disabled
person who is found by the department to be in a state of abuse,
neglect, or exploitation, and who, because of a physical or mental
condition, will be substantially unable to provide food, clothing,
or shelter for himself or herself, to care for the individual's own
physical health, or to manage the individual's own financial
affairs. A representative of the department shall take the oath
required by the Texas Probate Code on behalf of the department if
the department is appointed guardian. If the department knows that
an individual is willing and able to serve as the guardian, the
department may inform the court of that individual's willingness
and ability.
[(c) If appropriate, the department may contract with a
political subdivision of this state, a private agency, or another
state agency for the provision of guardianship services under this
section. The department or a political subdivision of the state or
state agency with which the department contracts under this section
is not required to post a bond or pay any cost or fee otherwise
required by the Texas Probate Code.
[(d) If the department is appointed guardian, the
department is not liable for funding services provided to the
department's ward, including long-term care or burial expenses.
[(e) The department may not be required to pay fees
associated with the appointment of a guardian ad litem or attorney
ad litem.
[(f) The department shall file an application with the court
to name a successor guardian if the department becomes aware of a
qualified and willing individual or guardianship program serving
the area in which the ward is located.]
SECTION 2.03. Section 161.071, Human Resources Code, is
amended to read as follows:
Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
department is responsible for administering human services
programs for the aging and disabled, including:
(1) administering and coordinating programs to
provide community-based care and support services to promote
independent living for populations that would otherwise be
institutionalized;
(2) providing institutional care services, including
services through convalescent and nursing homes and related
institutions under Chapter 242, Health and Safety Code;
(3) providing and coordinating programs and services
for persons with disabilities, including programs for the
treatment, rehabilitation, or benefit of persons with
developmental disabilities or mental retardation;
(4) operating state facilities for the housing,
treatment, rehabilitation, or benefit of persons with
disabilities, including state schools for persons with mental
retardation;
(5) serving as the state unit on aging required by the
federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
and its subsequent amendments, including performing the general
functions under Section 101.022 to ensure:
(A) implementation of the federal Older
Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
subsequent amendments, including implementation of services and
volunteer opportunities under that Act for older residents of this
state through area agencies on aging;
(B) advocacy for residents of nursing facilities
through the office of the state long-term care ombudsman;
(C) fostering of the state and community
infrastructure and capacity to serve older residents of this state;
and
(D) availability of a comprehensive resource for
state government and the public on trends related to and services
and programs for an aging population;
(6) performing all licensing and enforcement
activities and functions related to long-term care facilities,
including licensing and enforcement activities related to
convalescent and nursing homes and related institutions under
Chapter 242, Health and Safety Code;
(7) performing all licensing and enforcement
activities related to assisted living facilities under Chapter 247,
Health and Safety Code;
(8) performing all licensing and enforcement
activities related to intermediate care facilities for persons with
mental retardation under Chapter 252, Health and Safety Code; [and]
(9) performing all licensing and enforcement
activities and functions related to home and community support
services agencies under Chapter 142, Health and Safety Code; and
(10) serving as guardian of the person or estate, or
both, for an incapacitated individual as provided by Subchapter E
of this chapter and Chapter XIII, Texas Probate Code.
SECTION 2.04. Chapter 161, Human Resources Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. GUARDIANSHIP SERVICES
Sec. 161.101. GUARDIANSHIP SERVICES. (a) The department
shall file an application under Section 682 or 875, Texas Probate
Code, to be appointed guardian of the person or estate, or both, of
a minor referred to the department under Section 48.209(a)(1) for
guardianship services if the department determines:
(1) that the minor, because of a mental or physical
condition, will be substantially unable to provide for the minor's
own food, clothing, or shelter, to care for the minor's own physical
health, or to manage the individual's own financial affairs when
the minor becomes an adult; and
(2) that a less restrictive alternative to
guardianship is not available for the minor.
(b) The department shall conduct a thorough assessment of
the conditions and circumstances of an elderly or disabled person
referred to the department under Section 48.209(a)(2) for
guardianship services to determine whether a guardianship is
appropriate for the individual. In determining whether a
guardianship is appropriate, the department may consider the
resources and funds available to meet the needs of the elderly or
disabled person. The executive commissioner shall adopt rules for
the administration of this subsection.
(c) If after conducting an assessment of an elderly or
disabled person under Subsection (b) the department determines that
a guardianship is appropriate for the elderly or disabled person,
the department shall file an application under Section 682 or 875,
Texas Probate Code, to be appointed guardian of the person or
estate, or both, of the individual. If after conducting the
assessment the department determines that a less restrictive
alternative to guardianship is available for the elderly or
disabled person, the department shall pursue the less restrictive
alternative instead of applying for appointment as the person's
guardian.
(d) The department may not be required by a court to file an
application for guardianship, and the department may not be
appointed as permanent guardian for any individual unless the
department files an application to serve or otherwise agrees to
serve as the individual's guardian of the person or estate, or both.
(e) A guardianship created for an individual as a result of
an application for guardianship filed under Subsection (a) may not
take effect before the individual's 18th birthday.
Sec. 161.102. REFERRAL TO GUARDIANSHIP PROGRAM, COURT, OR
OTHER PERSON. (a) If the department becomes aware of a
guardianship program, private professional guardian, or other
person willing and able to provide the guardianship services that
would otherwise be provided by the department to an individual
referred to the department by the Department of Family and
Protective Services under Section 48.209, the department shall
refer the individual to that person or program for guardianship
services.
(b) If requested by a court, the department shall notify the
court of any referral made to the department by the Department of
Family and Protective Services relating to any individual who is
domiciled or found in a county where the requesting court has
probate jurisdiction and who may be appropriate for a
court-initiated guardianship proceeding under Section 683, Texas
Probate Code. In making a referral under this subsection and if
requested by the court, the department shall, to the extent allowed
by law, provide the court with all relevant information in the
department's records relating to the individual. The court, as
part of this process, may not require the department to:
(1) perform the duties of a guardian ad litem or court
investigator as prescribed by Section 683, Texas Probate Code; or
(2) gather additional information not contained in the
department's records.
Sec. 161.103. CONTRACT FOR GUARDIANSHIP SERVICES. If
appropriate, the department may contract with a political
subdivision of this state, a guardianship program as defined by
Section 601, Texas Probate Code, a private agency, or another state
agency for the provision of guardianship services under this
section.
Sec. 161.104. QUALITY ASSURANCE PROGRAM. The department
shall develop and implement a quality assurance program for
guardianship services provided by or on behalf of the department.
If the department enters into a contract with a political
subdivision, guardianship program, private agency, or other state
agency under Section 161.103, the department shall establish a
monitoring system as part of the quality assurance program to
ensure the quality of guardianship services for which the
department contracts under that section.
Sec. 161.105. OATH. A representative of the department
shall take the oath required by Section 700, Texas Probate Code, on
behalf of the department if the department is appointed guardian.
Sec. 161.106. GUARDIANSHIP POWERS AND DUTIES. In serving
as guardian of the person or estate, or both, for an incapacitated
individual, the department has all the powers granted and duties
prescribed to a guardian under Chapter XIII, Texas Probate Code, or
any other applicable law.
Sec. 161.107. EXEMPTION FROM GUARDIANSHIP BONDS, CERTAIN
COSTS, FEES, AND EXPENSES. (a) The department or a political
subdivision of this state or state agency with which the department
contracts under Section 161.103 is not required to post a bond or
pay any cost or fee associated with a bond otherwise required by the
Texas Probate Code in guardianship matters.
(b) The department is not required to pay any cost or fee
otherwise imposed for court proceedings or other services,
including:
(1) a filing fee or fee for issuance of service of
process imposed by Section 51.317, 51.318(b)(2), or 51.319,
Government Code;
(2) a court reporter fee imposed by Section 51.601,
Government Code;
(3) a judicial fund fee imposed by Section 51.702,
Government Code;
(4) a judge's fee imposed by Section 25.0008 or
25.0029, Government Code;
(5) a cost or security fee imposed by Section 12 or
622, Texas Probate Code; or
(6) a fee imposed by a county officer under Section
118.011 or 118.052, Local Government Code.
(c) The department may not be required to pay fees
associated with the appointment of a guardian ad litem or attorney
ad litem.
(d) A political subdivision of this state or state agency
with which the department contracts under Section 161.103 is not
required to pay any cost or fee otherwise required by the Texas
Probate Code.
(e) The department is not liable for funding services
provided to a ward of the department, including long-term care or
burial expenses.
Sec. 161.108. APPLICATION FOR SUCCESSOR GUARDIAN. The
department shall review each of the department's pending
guardianship cases at least annually to determine whether a more
suitable person, including a guardianship program or private
professional guardian, is willing and able to serve as successor
guardian for a ward of the department. If the department becomes
aware of any person's willingness and ability to serve as successor
guardian, the department shall notify the court in which the
guardianship is pending as required by Section 695A, Texas Probate
Code.
Sec. 161.109. ACCESS TO RECORDS OR DOCUMENTS. (a) The
department shall have access to all of the records and documents
concerning an individual referred for guardianship services under
this subchapter that are necessary to the performance of the
department's duties under this subchapter, including
client-identifying information and medical, psychological,
educational, or residential information.
(b) The department is exempt from the payment of a fee
otherwise required or authorized by law to obtain a medical record,
including a mental health record, from a hospital or health care
provider if the request for a record is made in the course of an
assessment for guardianship services conducted by the department.
(c) If the department cannot obtain access to a record or
document that is necessary to properly perform a duty under this
subchapter, the department may petition the probate court or the
statutory or constitutional court having probate jurisdiction for
access to the record or document.
(d) The court with probate jurisdiction shall, on good cause
shown, order the person or entity who denied access to a record or
document to allow the department to have access to the record or
document under the terms and conditions prescribed by the court.
(e) A person or entity is entitled to notice of and a hearing
on the department's petition for access as described by this
section.
(f) Access to, or disclosure of, a confidential record or
other confidential information under this section does not
constitute a waiver of confidentiality for other purposes or as to
other persons.
Sec. 161.110. LEGAL REPRESENTATION OF DEPARTMENT. (a)
Except as provided by Subsection (b), (c), or (f), the prosecuting
attorney representing the state in criminal cases in the county
court shall represent the department in any proceeding under this
subchapter unless the representation would be a conflict of
interest.
(b) If the attorney representing the state in criminal cases
in the county court is unable to represent the department in an
action under this subchapter because of a conflict of interest, the
attorney general shall represent the department in the action.
(c) If the attorney general is unable to represent the
department in an action under this subchapter, the attorney general
shall deputize an attorney who has contracted with the department
under Subsection (d) or an attorney employed by the department
under Subsection (e) to represent the department in the action.
(d) Subject to the approval of the attorney general, the
department may contract with a private attorney to represent the
department in an action under this subchapter.
(e) The department may employ attorneys to represent the
department in an action under this subchapter.
(f) In a county having a population of more than 2.8
million, the prosecuting attorney representing the state in civil
cases in the county court shall represent the department in any
proceeding under this subchapter unless the representation would be
a conflict of interest. If such attorney is unable to represent the
department in an action under this subchapter because of a conflict
of interest, the attorney general shall represent the department in
the action.
Sec. 161.111. CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION. (a) All files, reports, records, communications, or
working papers used or developed by the department in the
performance of duties relating to the assessment for or the
provision of guardianship services to an individual referred for
guardianship services under this subchapter are confidential and
not subject to disclosure under Chapter 552, Government Code.
(b) Confidential information may be disclosed only for a
purpose consistent with this subchapter, as required by other state
or federal law, or as necessary to enable the department to exercise
its powers and duties as guardian of the person or estate, or both,
of an individual.
(c) A court may order disclosure of confidential
information only if:
(1) a motion is filed with the court requesting
release of the information and a hearing on that request;
(2) notice of the hearing is served on the department
and each interested party; and
(3) the court determines after the hearing and an in
camera review of the information that disclosure is essential to
the administration of justice and will not endanger the life or
safety of any individual who:
(A) is being assessed by the department for
guardianship services under this subchapter;
(B) is a ward of the department; or
(C) provides services to a ward of the
department.
(d) The department shall establish a policy and procedures
for the exchange of information with another state agency or
governmental entity, including a court, with a local guardianship
program to which an individual is referred for services, or with any
other entity who provides services to a ward of the department, as
necessary for the department, state agency, governmental entity, or
other entity to properly execute its respective duties and
responsibilities to provide guardianship services or other needed
services to meet the needs of the ward under this subchapter or
other law. An exchange of information under this subsection does
not constitute a release for purposes of waiving the
confidentiality of the information exchanged.
Sec. 161.112. INDEMNIFICATION FOR LEGAL EXPENSES. If a
present or former employee of the department who was involved in
activities related to the provision of guardianship services under
this subchapter is criminally prosecuted for conduct related to the
person's misfeasance or nonfeasance in the course and scope of the
person's employment and is found not guilty after a trial or appeal
or if the complaint or indictment is dismissed without a plea of
guilty or nolo contendere being entered, the department may
indemnify the person or the person's estate for the reasonable
attorney's fees incurred in defense of the prosecution up to a
maximum of $10,000.
Sec. 161.113. IMMUNITY. (a) In this section, "volunteer"
means a person who:
(1) renders services for or on behalf of the
department under the supervision of a department employee; and
(2) does not receive compensation that exceeds the
authorized expenses the person incurs in performing those services.
(b) A department employee or an authorized volunteer who
performs a department duty or responsibility under this subchapter
is immune from civil or criminal liability for any act or omission
that relates to the duty or responsibility if the person acted in
good faith and within the scope of the person's authority.
SECTION 2.05. Section 695A, Texas Probate Code, is amended
by adding Subsection (a-1) to read as follows:
(a-1) If, while serving as a guardian for a ward under this
chapter, the Department of Aging and Disability Services 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 of the ward or
any other interested person who is willing and able to serve as the
ward's successor guardian, the department shall notify the court in
which the guardianship is pending of the guardianship program's or
private professional guardian's willingness and ability to serve.
SECTION 2.06. Section 700(b), Texas Probate Code, is
amended to read as follows:
(b) A representative of the Department of Aging and
Disability [Protective and Regulatory] Services shall take the oath
required by Subsection (a) of this section if the department is
appointed guardian.
SECTION 2.07. Section 875(j), Texas Probate Code, is
amended to read as follows:
(j) The court may not customarily or ordinarily appoint the
Department of Aging and Disability [Protective and Regulatory]
Services as a temporary guardian under this section. The
appointment of the department as a temporary guardian under this
section should be made only as a last resort.
SECTION 2.08. TRANSFERS TO THE DEPARTMENT OF AGING AND
DISABILITY SERVICES. (a) On September 1, 2005:
(1) all powers, duties, functions, programs, and
activities of the Department of Family and Protective Services
related to providing guardianship services for incapacitated
persons under Chapter 48, Human Resources Code, Chapter XIII, Texas
Probate Code, or other law are transferred to the Department of
Aging and Disability Services;
(2) all employees of the Department of Family and
Protective Services who primarily perform duties related to
providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law become employees of the Department of Aging and
Disability Services;
(3) a rule or form adopted by the executive
commissioner of the Health and Human Services Commission that
relates to the provision of guardianship services by the Department
of Family and Protective Services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law, as those laws existed immediately before that date, is
a rule or form of the Department of Aging and Disability Services
and remains in effect until altered by the executive commissioner;
(4) a reference in law to the Department of Family and
Protective Services or its predecessor agency, the Department of
Protective and Regulatory Services, that relates to providing
guardianship services for incapacitated persons under Chapter 48,
Human Resources Code, Chapter XIII, Texas Probate Code, or other
law means the Department of Aging and Disability Services;
(5) a waiver in effect that was issued by the
Department of Family and Protective Services Commission relating to
the provision of guardianship services for incapacitated persons
under Chapter 48, Human Resources Code, Chapter XIII, Texas Probate
Code, or other law is continued in effect as a waiver of the
Department of Aging and Disability Services;
(6) a proceeding involving the Department of Family
and Protective Services that is related to providing guardianship
services for incapacitated persons under Chapter 48, Human
Resources Code, Chapter XIII, Texas Probate Code, or other law is
transferred without change in status to the Department of Aging and
Disability Services, and the Department of Aging and Disability
Services assumes, without a change in status, the position of the
Department of Family and Protective Services in a proceeding
relating to guardianship matters to which the Department of Family
and Protective Services is a party;
(7) all money, contracts, rights, and obligations of
the Department of Family and Protective Services related to
providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law are transferred to the Department of Aging and
Disability Services, subject to Subsection (b) of this section;
(8) all property and records in the custody of the
Department of Family and Protective Services related to providing
guardianship services for incapacitated persons under Chapter 48,
Human Resources Code, Chapter XIII, Texas Probate Code, or other
law shall be transferred to the Department of Aging and Disability
Services; and
(9) all funds appropriated by the legislature to the
Department of Family and Protective Services for purposes related
to providing guardianship services for incapacitated persons under
Chapter 48, Human Resources Code, Chapter XIII, Texas Probate Code,
or other law are transferred to the Department of Aging and
Disability Services.
(b) The Department of Aging and Disability Services shall
administer a contract of the Department of Family and Protective
Services transferred under Subsection (a)(7) of this section until
the contract expires or is otherwise lawfully terminated.
(c) To effectuate a smooth and orderly transfer of existing
guardianship status, a court may not require the Department of
Family and Protective Services or the Department of Aging and
Disability Services to comply with the provisions concerning
resignation of a guardian and appointment of a successor guardian
under Subpart D, Part 4, Chapter XIII, Texas Probate Code, with
respect to guardianship cases of the Department of Family and
Protective Services transferred to the Department of Aging and
Disability Services under this section and Section 2.09 of this
Act.
(d) A reference in a legal document, including a letter of
guardianship issued under Section 659, Texas Probate Code, to the
Department of Family and Protective Services as guardian in an
existing guardianship or application for guardianship that is
pending on the effective date of this Act is considered to be a
reference to the Department of Aging and Disability Services.
(e) A public entity, a private entity, or any other person,
including a bank, a service provider, law enforcement personnel, or
medical personnel, is required to accept the Department of Aging
and Disability Services' authority as guardian in the same manner
the entity or person would have accepted the Department of Family
and Protective Services' authority as guardian of a particular
ward.
(f) The Department of Aging and Disability Services may not
be required to take a new oath of guardianship under Section 700,
Texas Probate Code, with respect to a guardianship case transferred
to the department from the Department of Family and Protective
Services under this section and Section 2.09 of this Act.
SECTION 2.09. TRANSITION PLAN. The executive commissioner
of the Health and Human Services Commission shall establish a plan
for the transfer of guardianship cases of the Department of Family
and Protective Services to the Department of Aging and Disability
Services on or before the last day of the period prescribed by the
executive commissioner.
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. This Act takes effect September 1, 2005.