BILL ANALYSIS

S.B. 277

By: Nelson

Human Services

Committee Report (Unamended)

BACKGROUND AND PURPOSE

The Department of Family and Protective Services (DFPS) is responsible for investigating abuse, neglect, and exploitation of adults who are elderly or have disabilities. DFPS also provides or arranges for services as necessary to alleviate or prevent further maltreatment. The growing population of elderly people and growing awareness of adult abuse has dramatically increased reports of abuse, neglect, and exploitation. Exploitation is misusing the resources of an elderly or disabled person for personal or monetary benefit, such as abusing a joint checking account and taking property and other resources.

S.B. 277 updates and clarifies provisions relating to investigations of alleged abuse, neglect, or exploitation of an elderly or disabled person conducted by DFPS.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

Section 531.0055, Government Code, as amended by Chapter 198 (H.B. 2292), Acts of the 78th Legislature, Regular Session, 2003, expressly grants to the executive commissioner of the Health and Human Services Commission all rulemaking authority for the operation of and provision of services by the health and human services agencies. Similarly, Sections 1.16-1.29, Chapter 198 (H.B. 2292), Acts of the 78th Legislature, Regular Session, 2003, provide for the transfer of a power, duty, function, program, or activity from a health and human services agency abolished by that act to the corresponding legacy agency. To the extent practicable, this bill analysis is written to reflect any transfer of rulemaking authority and to update references as necessary to an agency's authority with respect to a particular health and human services program.

S.B. 277 amends the Finance Code to include a record request from or report to a government agency arising out of the investigation of alleged abuse, neglect, or exploitation of an elderly or disabled person in the information to which provisions regarding discovery of customer records do not apply to and of which a financial institution is not required or authorized to give a customer notice.   

S.B. 277 amends the Government Code to clarify that the Department of Family and Protective Services (DFPS) is required to obtain from the Department of Public Safety (DPS) criminal history record information maintained by DPS that relates to a person who is an alleged perpetrator in, rather than a person who is the subject of, a report DFPS receives alleging that a person has abused, neglected, or exploited a child, an elderly person, or a person with a disability. The bill entitles DFPS to obtain from DPS criminal history record information maintained by DPS that relates to a person who is an employee of, an applicant for employment with, or a volunteer or an applicant volunteer with an entity or person that contracts with DFPS and has access to confidential information in DPS's records, if the employee, applicant, volunteer, or applicant volunteer has or will have access to that confidential information. The bill includes certain volunteers, relatives, and caregivers of children and various children programs among the persons for which DFPS is entitled to obtain criminal history record information maintained or indexed by the Federal Bureau of Investigation.

S.B. 277 clarifies that DFPS is not prohibited from releasing criminal history record information that DFPS is authorized or required to obtain to an adult who resides with an alleged victim of abuse, neglect, or exploitation of a child, elderly person, or a person with a disability and who also resides with the alleged perpetrator of that abuse, neglect, or exploitation under certain circumstances. The bill adds to those persons to whom DFPS is not prohibited from releasing criminal history record information an elderly or disabled person who is an alleged victim of abuse, neglect, or exploitation and who resides with the alleged perpetrator of that abuse, neglect, or exploitation if the alleged perpetrator is the subject of the criminal history record information and DFPS determines that the release of the information to the elderly or disabled person or adult is necessary to ensure the safety or welfare of the elderly or disabled person.

S.B. 277 amends the Human Resources Code to include the services furnished by DFPS or by a protective services agency to a relative or caretaker of an elderly or disabled person if DFPS determines the services are necessary to prevent the elderly or disabled person from returning to a state of abuse, neglect, or exploitation in the definition of "protective services." The bill establishes that the term does not include the services of DFPS or another protective agency in conducting an investigation regarding alleged abuse, neglect, or exploitation of an elderly or disabled person. The bill specifies that protective services may include respite services. The bill requires DFPS to send the survey soliciting information regarding DFPS' performance with respect to providing investigative and adult protective services to the required stakeholders, agencies, and courts biennially, rather than annually.

S.B. 277 enhances the penalty for an offense relating to a false report of abuse, neglect, or exploitation from a Class B misdemeanor to a Class A misdemeanor. The bill requires DFPS to continue an investigation of a report of an allegation of abuse, neglect, or exploitation involving an elderly or disabled person who refuses to be interviewed or cannot be interviewed because of a physical or mental impairment by interviewing other persons thought to have knowledge relevant to the investigation. The bill adds a physician, nurse, or other medical professional to the list of standing members of each special task unit created to aid in the investigation of complex cases. The bill includes financial records in the records or documents to which DFPS or another state agency is required to have access necessary to the performance of DFPS' or the agency's duties, includes an institution that has a record or document that DFPS or a state agency needs to perform its duties in the entities that are required, without necessary delay, to make such a record or document available to DFPS or a state agency upon request, and makes conforming changes. The bill includes a financial record from a person, agency, or institution in the records for which DFPS is exempt from paying a fee otherwise required by law to obtain if requested in the course of an investigation. The bill requires a court to order an agency or institution that has a record or document requested by DFPS or a state agency to allow DFPS or the state agency to have access to that record or document. The bill entitles an agency or institution that has a requested record or document to notice and a hearing on a petition filed for access to a record or document.     

S.B. 277 clarifies that an emergency order authorizing protective services issued because an elderly or disabled person who lacks the capacity to consent to protective services is an exception to the prohibition against DFPS providing protective services for such a person who withdraws from or refuses consent to voluntary protective services. The bill authorizes a protective services agency to furnish protective services to a relative or caretaker of an elderly or disabled person on behalf of the elderly or disabled person with the relative's or caregiver's consent. The bill authorizes a licensed professional counselor to perform an assessment of an elderly or disabled person's psychological status for the purposes of an emergency order for protective services.

S.B. 277 specifies that an emergency order expires the earlier of the end of the 10th day after the date the order is rendered or the end of the 10th day after the date the person is removed to safer surroundings if the emergency order was rendered subsequent to the removal of the person to safer surroundings, rather than at the end of 72 hours from the time the order is rendered, and makes conforming changes. The bill specifies that the court may extend an emergency order, after notice and a hearing, for a period of not more than 30 days after the date the original emergency order for protective services was rendered. The bill authorizes the court, after notice and a hearing and for good cause shown, to grant a second extension of an emergency order of not more than an additional 30 days. The bill prohibits the court from granting more than two extensions of the original emergency order.

S.B. 277 clarifies that any medical facility, emergency medical services provider, or physician who provides treatment to or who transports an elderly or disabled person pursuant to an emergency order is not liable for damages arising from the treatment or transportation, unless the damages arise from negligence. The bill authorizes DFPS to authorize an appropriate transportation service, including an emergency medical provider, to remove the elderly or disabled person to safer surroundings if DFPS is unable to obtain an emergency order because the court is closed on a Saturday, Sunday, legal holiday, or after 5 p.m. The bill permits DFPS to authorize, rather than order, other available services necessary to remove conditions creating the threat to life or public safety of the elderly or disabled person.

S.B. 277 requires a state agency that is affected by a provision of the bill to request a federal waiver or authorization if the agency determines that a waiver or authorization is necessary for the implementation of the provision, and it authorizes the agency to delay implementation until the federal waiver or authorization is obtained.

EFFECTIVE DATE

September 1, 2009.