|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the protection and care of individuals with mental |
|
retardation. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 261.404, Family Code, is amended by |
|
adding Subsection (b-1) to read as follows: |
|
(b-1) If an investigation under this section reveals |
|
evidence of abuse, neglect, or exploitation of a resident or client |
|
of a state developmental center as defined by Section 531.002, |
|
Health and Safety Code, or the ICF-MR component of the Rio Grande |
|
State Center, and a caseworker of the department or a supervisor of |
|
a caseworker believes that the abuse, neglect, or exploitation is a |
|
criminal offense, the caseworker or supervisor shall immediately |
|
notify the Health and Human Services Commission's office of |
|
inspector general and promptly provide the Health and Human |
|
Services Commission's office of inspector general with a copy of |
|
the department's investigation report. |
|
SECTION 2. Subchapter F, Chapter 411, Government Code, is |
|
amended by adding Section 411.1144 to read as follows: |
|
Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD |
|
INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS AT STATE |
|
DEVELOPMENTAL CENTERS. (a) The Department of State Health |
|
Services and the Department of Aging and Disability Services are |
|
entitled to obtain from the department criminal history record |
|
information maintained by the department that relates to a person: |
|
(1) who is: |
|
(A) an applicant for employment with the agency; |
|
(B) an employee of the agency; |
|
(C) a volunteer with the agency; or |
|
(D) an applicant for a volunteer position with |
|
the agency; and |
|
(2) who would be placed in direct contact with a |
|
resident or client of a state developmental center or the ICF-MR |
|
component of the Rio Grande State Center. |
|
(b) Criminal history record information obtained by an |
|
agency under Subsection (a) may not be released or disclosed to any |
|
person except: |
|
(1) on court order; |
|
(2) with the consent of the person who is the subject |
|
of the criminal history record information; |
|
(3) for purposes of an administrative hearing held by |
|
the agency concerning the person who is the subject of the criminal |
|
history record information; or |
|
(4) as provided by Subsection (c). |
|
(c) An agency is not prohibited from releasing criminal |
|
history record information obtained under Subsection (a) or (d) to |
|
the person who is the subject of the criminal history record |
|
information. |
|
(d) Subject to Section 411.087, the Department of State |
|
Health Services and the Department of Aging and Disability Services |
|
are entitled to: |
|
(1) obtain through the Federal Bureau of Investigation |
|
criminal history record information maintained or indexed by that |
|
bureau that pertains to a person described by Subsection (a); and |
|
(2) obtain from any other criminal justice agency in |
|
this state criminal history record information maintained by that |
|
criminal justice agency that relates to a person described by |
|
Subsection (a). |
|
SECTION 3. Subchapter C, Chapter 531, Government Code, is |
|
amended by adding Section 531.1022 to read as follows: |
|
Sec. 531.1022. ASSISTING CERTAIN INVESTIGATIONS BY LAW |
|
ENFORCEMENT. (a) The office of inspector general shall employ and |
|
commission peace officers for the sole purpose of assisting a state |
|
or local law enforcement agency in the investigation of an alleged |
|
criminal offense involving a resident or client of a state |
|
developmental center as defined by Section 531.002, Health and |
|
Safety Code, or the ICF-MR component of the Rio Grande State Center. |
|
A peace officer employed and commissioned by the office is a peace |
|
officer for purposes of Article 2.12, Code of Criminal Procedure. |
|
(b) The office of inspector general shall prepare a final |
|
report for each investigation conducted under this section. The |
|
office shall ensure that the report does not contain identifying |
|
information of an individual mentioned in the report. The final |
|
report must include: |
|
(1) a summary of the activities performed by the |
|
office of inspector general in conducting the investigation; |
|
(2) a statement regarding whether the investigation |
|
resulted in a finding that an alleged criminal offense was |
|
committed; and |
|
(3) a description of the alleged criminal offense that |
|
was committed. |
|
(c) The office of inspector general shall deliver the final |
|
report to the: |
|
(1) executive commissioner; |
|
(2) commissioner of the Department of Aging and |
|
Disability Services; |
|
(3) commissioner of the Department of Family and |
|
Protective Services; |
|
(4) Aging and Disability Services Council; |
|
(5) governor; |
|
(6) lieutenant governor; |
|
(7) speaker of the house of representatives; |
|
(8) standing committees of the senate and house of |
|
representatives with primary jurisdiction over state developmental |
|
centers; and |
|
(9) state auditor. |
|
(d) A final report regarding an investigation is subject to |
|
required disclosure under Chapter 552. All information and |
|
materials compiled by the office of inspector general in connection |
|
with an investigation are confidential, and not subject to |
|
disclosure under Chapter 552, and not subject to disclosure, |
|
discovery, subpoena, or other means of legal compulsion for their |
|
release to anyone other than the office or its employees or agents |
|
involved in the investigation conducted by the office, except that |
|
this information may be disclosed to the office of the attorney |
|
general, the state auditor's office, and law enforcement agencies. |
|
(e) The office of inspector general shall prepare an annual |
|
status report of its activities under this section. The annual |
|
report may not contain identifying information of an individual |
|
mentioned in the report. The annual status report must include |
|
information that is aggregated and disaggregated by individual |
|
state developmental center or the ICF-MR component of the Rio |
|
Grande State Center regarding: |
|
(1) the number and type of alleged offenses |
|
investigated by the office; |
|
(2) the number and type of alleged offenses involving |
|
an employee of a state developmental center or the ICF-MR component |
|
of the Rio Grande State Center; |
|
(3) the relationship of an alleged victim to an |
|
alleged perpetrator; and |
|
(4) the number of investigations conducted that |
|
involve the suicide, death, or hospitalization of an alleged |
|
victim. |
|
(f) The office of inspector general shall submit the annual |
|
status report to the: |
|
(1) executive commissioner; |
|
(2) commissioner of the Department of Aging and |
|
Disability Services; |
|
(3) commissioner of the Department of Family and |
|
Protective Services; |
|
(4) Aging and Disability Services Council; |
|
(5) Family and Protective Services Council; |
|
(6) governor; |
|
(7) lieutenant governor; |
|
(8) speaker of the house of representatives; |
|
(9) standing committees of the senate and house of |
|
representatives with primary jurisdiction over state developmental |
|
centers; |
|
(10) state auditor; and |
|
(11) comptroller. |
|
(g) An annual status report submitted under this section is |
|
public information under Chapter 552. |
|
SECTION 4. Section 252.122(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) A person, including an owner or employee of a facility, |
|
who has cause to believe that the physical or mental health or |
|
welfare of a resident has been or may be adversely affected by abuse |
|
or neglect caused by another person shall report the abuse or |
|
neglect to the Department of Family and Protective Services |
|
[department], to a designated agency, or to both the Department of |
|
Family and Protective Services [department] and the designated |
|
agency, as specified in [department] rules adopted by the |
|
Department of Family and Protective Services. |
|
SECTION 5. Section 252.124(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) A local or state law enforcement agency that receives a |
|
report of abuse or neglect shall refer the report to the Department |
|
of Family and Protective Services [department] or the designated |
|
agency. |
|
SECTION 6. Sections 252.125(a), (c), (d), (e), (f), and |
|
(g), Health and Safety Code, are amended to read as follows: |
|
(a) The Department of Family and Protective Services |
|
[department] or the designated agency shall make a thorough |
|
investigation promptly after receiving either the oral or written |
|
report. |
|
(c) In the investigation, the Department of Family and |
|
Protective Services [department] or the designated agency shall |
|
determine: |
|
(1) the nature, extent, and cause of the abuse or |
|
neglect; |
|
(2) the identity of the person responsible for the |
|
abuse or neglect; |
|
(3) the names and conditions of the other residents; |
|
(4) an evaluation of the persons responsible for the |
|
care of the residents; |
|
(5) the adequacy of the facility environment; and |
|
(6) any other information required by the Department |
|
of Family and Protective Services [department]. |
|
(d) The investigation may include a visit to the resident's |
|
facility and an interview with the resident, if considered |
|
appropriate by the Department of Family and Protective Services |
|
[department]. |
|
(e) If the Department of Family and Protective Services |
|
[department] attempts to carry out an on-site investigation and it |
|
is shown that admission to the facility or any place where a |
|
resident is located cannot be obtained, a probate or county court |
|
shall order the person responsible for the care of the resident or |
|
the person in charge of a place where the resident is located to |
|
allow admission for the investigation and any interview with the |
|
resident. |
|
(f) Before the completion of the investigation, the |
|
Department of Family and Protective Services [department] shall |
|
file a petition for temporary care and protection of the resident if |
|
the Department of Family and Protective Services [department] |
|
determines that immediate removal is necessary to protect the |
|
resident from further abuse or neglect. |
|
(g) The Department of Family and Protective Services |
|
[department] or the designated agency shall make a complete written |
|
report of the investigation and submit the report and its |
|
recommendations to the district attorney and the appropriate law |
|
enforcement agency and, if necessary, to the Department of Family |
|
and Protective Services [department] on the Department of Family |
|
and Protective Services' [department's] request. |
|
SECTION 7. Section 252.126, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 252.126. CONFIDENTIALITY. A report, record, or |
|
working paper used or developed in an investigation made under this |
|
subchapter is confidential and may be disclosed only for purposes |
|
consistent with the rules adopted by the executive commissioner of |
|
the Health and Human Services Commission [board] or the designated |
|
agency. |
|
SECTION 8. Section 252.129, Health and Safety Code, is |
|
amended by adding Subsection (d) to read as follows: |
|
(d) The department and the Department of Family and |
|
Protective Services shall cooperate to ensure that the central |
|
registry required by this section accurately includes reported |
|
cases of resident abuse and neglect. |
|
SECTION 9. Sections 252.134(a) through (e), Health and |
|
Safety Code, are amended to read as follows: |
|
(a) A facility licensed under this chapter shall submit a |
|
report to the Department of Family and Protective Services |
|
[department] concerning the death of: |
|
(1) a resident of the facility; and |
|
(2) a former resident that occurs 24 hours or less |
|
after the former resident is transferred from the facility to a |
|
hospital. |
|
(b) The report must be submitted not later than the 10th |
|
working day after the last day of each month in which a resident of |
|
the facility dies. The facility must make the report on a form |
|
prescribed by the Department of Family and Protective Services |
|
[department]. The report must contain the name and social security |
|
number of the deceased. |
|
(c) The Department of Family and Protective Services |
|
[department] shall correlate reports under this section with death |
|
certificate information to develop data relating to the: |
|
(1) name and age of the deceased; |
|
(2) official cause of death listed on the death |
|
certificate; |
|
(3) date, time, and place of death; and |
|
(4) name and address of the facility in which the |
|
deceased resided. |
|
(d) Unless specified by rules adopted by the executive |
|
commissioner of the Health and Human Services Commission [board
|
|
rule], a record under this section is confidential and not subject |
|
to the provisions of Chapter 552, Government Code. |
|
(e) The Department of Family and Protective Services |
|
[department] shall develop statistical information on official |
|
causes of death to determine patterns and trends of incidents of |
|
death among persons with mental retardation and related conditions |
|
and in specific facilities. Information developed under this |
|
subsection is not confidential. |
|
SECTION 10. Section 531.002(17), Health and Safety Code, is |
|
amended to read as follows: |
|
(17) "State developmental center [school]" means a |
|
state-supported and structured residential facility operated by |
|
the Department of Aging and Disability Services [department] to |
|
provide to clients with mental retardation a variety of services, |
|
including medical treatment, specialized therapy, and training in |
|
the acquisition of personal, social, and vocational skills. |
|
SECTION 11. Chapter 531, Health and Safety Code, is amended |
|
by adding Section 531.0021 to read as follows: |
|
Sec. 531.0021. REFERENCE TO STATE SCHOOL OR SUPERINTENDENT. |
|
(a) A reference in law to a "state school" means a state |
|
developmental center. |
|
(b) A reference in law to a "superintendent," to the extent |
|
the term is intended to refer to the person in charge of a state |
|
developmental center, means the director of a state developmental |
|
center. |
|
SECTION 12. Section 532.001(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) The department also includes community services |
|
operated by the department and the following facilities: |
|
(1) the central office of the department; |
|
(2) the Austin State Hospital; |
|
(3) the Big Spring State Hospital; |
|
(4) the Kerrville State Hospital; |
|
(5) the Rusk State Hospital; |
|
(6) the San Antonio State Hospital; |
|
(7) the Terrell State Hospital; |
|
(8) the North Texas State Hospital; |
|
(9) the Abilene State Developmental Center [School]; |
|
(10) the Austin State Developmental Center [School]; |
|
(11) the Brenham State Developmental Center [School]; |
|
(12) the Corpus Christi State Developmental Center |
|
[School]; |
|
(13) the Denton State Developmental Center [School]; |
|
(14) the Lubbock State Developmental Center [School]; |
|
(15) the Lufkin State Developmental Center [School]; |
|
(16) the Mexia State Developmental Center [School]; |
|
(17) the Richmond State Developmental Center |
|
[School]; |
|
(18) the San Angelo State Developmental Center |
|
[School]; |
|
(19) the San Antonio State Developmental Center |
|
[School]; |
|
(20) the El Paso State Developmental Center; |
|
(21) the Rio Grande State Center; and |
|
(22) the Waco Center for Youth. |
|
SECTION 13. Section 551.022, Health and Safety Code, is |
|
amended by adding Subsection (e) to read as follows: |
|
(e) This section does not apply to a state developmental |
|
center or the director of a state developmental center. |
|
SECTION 14. Subchapter B, Chapter 551, Health and Safety |
|
Code, is amended by adding Section 551.0225 to read as follows: |
|
Sec. 551.0225. POWERS AND DUTIES OF STATE DEVELOPMENTAL |
|
CENTER DIRECTOR. (a) The director of a state developmental center |
|
is the administrative head of the center. |
|
(b) The director of a state developmental center has the |
|
custody of and responsibility to care for the buildings, grounds, |
|
furniture, and other property relating to the center. |
|
(c) The director of a state developmental center shall: |
|
(1) oversee the admission and discharge of residents |
|
and clients; |
|
(2) keep a register of all residents and clients |
|
admitted to or discharged from the center; |
|
(3) supervise repairs and improvements to the center; |
|
(4) ensure that center money is spent judiciously and |
|
economically; |
|
(5) keep an accurate and detailed account of all money |
|
received and spent, stating the source of the money and on whom and |
|
the purpose for which the money is spent; and |
|
(6) keep a full record of the center's operations. |
|
(d) In accordance with departmental rules and operating |
|
procedures, the director of a state developmental center may: |
|
(1) establish policy to govern the state developmental |
|
center that the director considers will best promote the residents' |
|
interest and welfare; |
|
(2) hire subordinate officers, teachers, and other |
|
employees and set their salaries, in the absence of other law; and |
|
(3) dismiss a subordinate officer, teacher, or |
|
employee. |
|
SECTION 15. Subtitle B, Title 7, Health and Safety Code, is |
|
amended by adding Chapter 555 to read as follows: |
|
CHAPTER 555. STATE DEVELOPMENTAL CENTERS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 555.001. DEFINITIONS. In this chapter: |
|
(1) "Alleged offender resident" means a person with |
|
mental retardation who has been committed to or transferred to a |
|
state developmental center under Chapter 55, Family Code, or |
|
Chapter 46B or 46C, Code of Criminal Procedure. |
|
(2) "Center employee" means an employee of a state |
|
developmental center or the ICF-MR component of the Rio Grande |
|
State Center. |
|
(3) "Client" means a person with mental retardation |
|
who receives ICF-MR services from a state developmental center or |
|
the ICF-MR component of the Rio Grande State Center. |
|
(4) "Commission" means the Health and Human Services |
|
Commission. |
|
(5) "Complaint" means information received by the |
|
office of independent ombudsman regarding a possible violation of a |
|
right of a resident or client of a state developmental center and |
|
includes information received regarding a failure by a state |
|
developmental center to comply with the department's policies and |
|
procedures relating to the community living options information |
|
process. |
|
(6) "Department" means the Department of Aging and |
|
Disability Services. |
|
(7) "Direct care employee" means a center employee who |
|
provides direct delivery of services to a resident or client. |
|
(8) "Executive commissioner" means the executive |
|
commissioner of the Health and Human Services Commission. |
|
(9) "Independent ombudsman" means the individual who |
|
has been appointed to the office of independent ombudsman. |
|
(10) "Office" means the office of independent |
|
ombudsman established under Subchapter C. |
|
(11) "Resident" means a person with mental retardation |
|
who resides in a state developmental center or the ICF-MR component |
|
of the Rio Grande State Center. |
|
(12) "State developmental center" has the meaning |
|
assigned by Section 531.002. |
|
(13) "State developmental center employee" means an |
|
employee of a state developmental center. |
|
Sec. 555.002. STATE DEVELOPMENTAL CENTER FOR ALLEGED |
|
OFFENDER RESIDENTS. (a) The department shall establish a separate |
|
state developmental center for the care of alleged offender |
|
residents apart from other clients and residents. The department |
|
shall designate an existing state developmental center for this |
|
purpose. |
|
(b) In establishing a state developmental center designated |
|
for alleged offender residents, the department shall: |
|
(1) transfer an alleged offender resident already |
|
residing in a state developmental center to the designated state |
|
developmental center; |
|
(2) place alleged offender residents in separate homes |
|
at the designated state developmental center based on whether the |
|
alleged offender resident is: |
|
(A) an adult or a person younger than 18 years of |
|
age; or |
|
(B) male or female; |
|
(3) place all alleged offender residents committed to |
|
or transferred to a state developmental center in the designated |
|
state developmental center; |
|
(4) divert future admissions of residents who are not |
|
alleged offenders from the designated state developmental center; |
|
and |
|
(5) provide training regarding the service delivery |
|
system for alleged offender residents to direct care employees of |
|
the designated state developmental center. |
|
(c) Notwithstanding Section 594.014, an alleged offender |
|
resident who is transferred to the designated state developmental |
|
center is not entitled to an administrative hearing regarding a |
|
transfer of the resident. |
|
(d) The department shall ensure that the designated state |
|
developmental center complies with the requirements for ICF-MR |
|
certification under the Medicaid program as appropriate. |
|
[Sections 555.003-555.020 reserved for expansion] |
|
SUBCHAPTER B. POWERS AND DUTIES |
|
Sec. 555.021. REQUIRED CRIMINAL HISTORY CHECKS FOR |
|
EMPLOYEES AND VOLUNTEERS. (a) The department and the Department of |
|
State Health Services shall perform a state and federal criminal |
|
history background check on a person: |
|
(1) who is: |
|
(A) an applicant for employment with the agency; |
|
(B) an employee of the agency; |
|
(C) a volunteer with the agency; or |
|
(D) an applicant for a volunteer position with |
|
the agency; and |
|
(2) who would be placed in direct contact with a |
|
resident or client. |
|
(b) The executive commissioner shall adopt rules requiring |
|
a person described by Subsection (a) to submit fingerprints in a |
|
form and of a quality acceptable to the Department of Public Safety |
|
and the Federal Bureau of Investigation for use in conducting a |
|
criminal history background check. |
|
(c) Each agency shall obtain electronic updates from the |
|
Department of Public Safety of arrests and convictions of a person: |
|
(1) for whom the agency performs a background check |
|
under Subsection (a); and |
|
(2) who remains an employee or volunteer of the agency |
|
and continues to have direct contact with a resident or client. |
|
Sec. 555.022. DRUG TESTING; POLICY. (a) The executive |
|
commissioner by rule shall adopt a policy regarding random testing |
|
and reasonable suspicion testing for the illegal use of drugs by a |
|
state developmental center employee. |
|
(b) The director of a state developmental center shall |
|
enforce the policy adopted under Subsection (a) by performing |
|
necessary drug testing of the state developmental center employees |
|
for the use of a controlled substance as defined by Section 481.002. |
|
(c) Testing under this section may be performed on a random |
|
basis or on reasonable suspicion of the use of a controlled |
|
substance. |
|
(d) For purposes of this section, a report made under |
|
Section 555.023 is considered reasonable suspicion of the use of a |
|
controlled substance. |
|
Sec. 555.023. REPORTS OF ILLEGAL DRUG USE; POLICY. The |
|
executive commissioner by rule shall adopt a policy requiring a |
|
state developmental center employee who knows or reasonably |
|
suspects that another state developmental center employee is |
|
illegally using or under the influence of a controlled substance, |
|
as defined by Section 481.002, to report that knowledge or |
|
reasonable suspicion to the director of the state developmental |
|
center. |
|
Sec. 555.024. CENTER EMPLOYEE TRAINING. (a) Before a |
|
center employee begins to perform the employee's duties without |
|
direct supervision, the department shall provide the employee with |
|
competency training and a course of instruction about the general |
|
duties of a center employee. The department shall ensure the basic |
|
center employee competency course focuses on: |
|
(1) the uniqueness of the individuals the center |
|
employee serves; |
|
(2) techniques for improving quality of life for and |
|
promoting the health and safety of individuals with mental |
|
retardation; and |
|
(3) the conduct expected of center employees. |
|
(b) The department shall ensure the training required by |
|
Subsection (a) provides instruction and information regarding the |
|
following topics: |
|
(1) the general operation and layout of the state |
|
developmental center, including armed intruder lockdown |
|
procedures; |
|
(2) an introduction to mental retardation; |
|
(3) an introduction to mental illness and dual |
|
diagnosis; |
|
(4) the rights of individuals with mental retardation |
|
who receive services from the department; |
|
(5) respecting personal choices made by residents and |
|
clients; |
|
(6) the safe and proper use of restraints; |
|
(7) recognizing and reporting: |
|
(A) abuse, neglect, and exploitation of |
|
individuals with mental retardation; |
|
(B) unusual incidents; |
|
(C) reasonable suspicion of illegal drug use in |
|
the workplace; |
|
(D) workplace violence; or |
|
(E) sexual harassment in the workplace; |
|
(8) preventing and treating infection; |
|
(9) first aid; |
|
(10) cardiopulmonary resuscitation; |
|
(11) the Health Insurance Portability and |
|
Accountability Act of 1996 (29 U.S.C. Section 1181 et seq.); and |
|
(12) civil rights of center employees. |
|
(c) In addition to the training required by Subsection (a) |
|
and before a direct care employee begins to perform the direct care |
|
employee's duties without direct supervision, the department shall |
|
provide a direct care employee with training and instructional |
|
information regarding the following topics: |
|
(1) prevention and management of aggressive behavior; |
|
(2) observing and reporting changes in behavior, |
|
appearance, or health of residents and clients; |
|
(3) positive behavior support; |
|
(4) emergency response; |
|
(5) person-directed plans; |
|
(6) seizure safety; |
|
(7) techniques for: |
|
(A) lifting; |
|
(B) positioning; and |
|
(C) movement and mobility; |
|
(8) working with aging residents and clients; |
|
(9) assisting residents and clients: |
|
(A) who have a visual impairment; |
|
(B) who have a hearing deficit; or |
|
(C) who require the use of adaptive devices and |
|
specialized equipment; |
|
(10) communicating with residents and clients who use |
|
augmentative and alternative devices for communication; |
|
(11) assisting residents and clients with personal |
|
hygiene; |
|
(12) recognizing appropriate food textures; |
|
(13) using proper feeding techniques to assist |
|
residents and clients with meals; and |
|
(14) physical and nutritional management plans. |
|
Sec. 555.025. VIDEO SURVEILLANCE. (a) In this section, |
|
"private space" means a place in a state developmental center or the |
|
ICF-MR component of the Rio Grande State Center in which a resident |
|
or client has a reasonable expectation of privacy, including: |
|
(1) a bedroom; |
|
(2) a bathroom; |
|
(3) a place in which a resident or client receives |
|
medical or nursing services; |
|
(4) a place in which a resident or client meets |
|
privately with visitors; or |
|
(5) a place in which a resident or client privately |
|
makes phone calls. |
|
(b) The department may install and operate video |
|
surveillance equipment in a state developmental center or the |
|
ICF-MR component of the Rio Grande State Center for the purpose of |
|
detecting and preventing the exploitation or abuse of residents and |
|
clients. |
|
(c) The department may not install or operate video |
|
surveillance equipment in a private space or in a location in which |
|
video surveillance equipment can capture images within a private |
|
space. |
|
(d) The department shall ensure the use of video |
|
surveillance equipment under this section complies with federal |
|
requirements for ICF-MR certification. |
|
Sec. 555.026. MORTALITY REVIEW. (a) The executive |
|
commissioner shall establish an independent mortality review |
|
system to review the death of a person who, at the time of the |
|
person's death, was a resident or client. |
|
(b) A review under this section shall be conducted in |
|
addition to any review conducted by the state developmental center |
|
or the Rio Grande State Center. |
|
(c) The executive commissioner shall contract with a |
|
patient safety organization certified in accordance with 42 C.F.R. |
|
Part 3, as effective on January 20, 2009, to conduct independent |
|
mortality reviews required by this section. The contract must |
|
require the patient safety organization to conduct an independent |
|
mortality review using a team consisting of: |
|
(1) a physician with expertise regarding the medical |
|
treatment of individuals with mental retardation; |
|
(2) a registered nurse with expertise regarding the |
|
medical treatment of individuals with mental retardation; |
|
(3) a clinician or other professional with expertise |
|
in the delivery of services and supports for individuals with |
|
mental retardation; and |
|
(4) any other appropriate person as provided by the |
|
executive commissioner. |
|
(d) A patient safety organization that performs an |
|
independent mortality review shall submit to the department, the |
|
office of independent ombudsman, and the commission's office of |
|
inspector general a report of the findings of the mortality review. |
|
(e) The department may use information from a mortality |
|
review report only to advance statewide practices regarding the |
|
treatment and care of individuals with mental retardation or other |
|
disabilities. |
|
(f) The department may release a summary or a statistical |
|
compilation of data drawn from reports submitted under this section |
|
only if the summary or statistical compilation does not contain |
|
information that would permit the identification of an individual. |
|
[Sections 555.027-555.050 reserved for expansion] |
|
SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE |
|
DEVELOPMENTAL CENTERS |
|
Sec. 555.051. ESTABLISHMENT; PURPOSE. The office of |
|
independent ombudsman is established for the purpose of |
|
investigating, evaluating, and securing the rights of the residents |
|
and clients of state developmental centers. The office is |
|
administratively attached to the department. The department shall |
|
provide administrative support and resources to the office as |
|
necessary for the office to perform its duties. |
|
Sec. 555.052. INDEPENDENCE. The independent ombudsman in |
|
the performance of the ombudsman's duties and powers under this |
|
subchapter acts independently of the department. |
|
Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. The |
|
governor shall appoint the independent ombudsman. |
|
Sec. 555.054. ASSISTANT OMBUDSMEN. The independent |
|
ombudsman shall: |
|
(1) hire assistant ombudsmen to perform, under the |
|
direction of the independent ombudsman, the same duties and |
|
exercise the same powers as the independent ombudsman; and |
|
(2) station an assistant ombudsman at each state |
|
developmental center. |
|
Sec. 555.055. CONFLICT OF INTEREST. A person may not serve |
|
as independent ombudsman or as an assistant ombudsman if the person |
|
or the person's spouse: |
|
(1) is employed by or participates in the management |
|
of a business entity or other organization receiving funds from the |
|
department; |
|
(2) owns or controls, directly or indirectly, any |
|
interest in a business entity or other organization receiving funds |
|
from the department; or |
|
(3) is required to register as a lobbyist under |
|
Chapter 305, Government Code, because of the person's activities or |
|
compensation on behalf of a profession related to the operation of |
|
the department. |
|
Sec. 555.056. REPORT. (a) The independent ombudsman shall |
|
submit on a biannual basis to the governor, the lieutenant |
|
governor, and the speaker of the house of representatives a report |
|
that is both aggregated and disaggregated by individual state |
|
developmental center and describes: |
|
(1) the work of the independent ombudsman; |
|
(2) the results of any review or investigation |
|
undertaken by the independent ombudsman, including reviews or |
|
investigation of services contracted by the department; and |
|
(3) any recommendations that the independent |
|
ombudsman has in relation to the duties of the independent |
|
ombudsman. |
|
(b) The independent ombudsman shall ensure that information |
|
submitted in a report under Subsection (a) does not permit the |
|
identification of an individual. |
|
(c) The independent ombudsman shall immediately report to |
|
the governor, lieutenant governor, and speaker of the house of |
|
representatives any particularly serious or flagrant: |
|
(1) case of abuse or injury of a resident or client |
|
about which the independent ombudsman is made aware; |
|
(2) problem concerning the administration of a state |
|
developmental center program or operation; or |
|
(3) interference by a state developmental center, the |
|
department, or the commission with an investigation conducted by |
|
the independent ombudsman. |
|
Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The |
|
department shall allow any resident or client, authorized |
|
representative of a resident or client, family member of a resident |
|
or client, or other interested party to communicate with the |
|
independent ombudsman or an assistant ombudsman. The |
|
communication: |
|
(1) may be in person, by mail, or by any other means; |
|
and |
|
(2) is confidential and privileged. |
|
(b) The records of the independent ombudsman are |
|
confidential, except that the independent ombudsman shall: |
|
(1) share with the Department of Family and Protective |
|
Services a communication that may involve the abuse, neglect, or |
|
exploitation of a resident or client; |
|
(2) share with the regulatory services division of the |
|
department a communication that may involve a violation of an |
|
ICF-MR standard or condition of participation; and |
|
(3) disclose the ombudsman's nonprivileged records if |
|
required by a court order on a showing of good cause. |
|
(c) The independent ombudsman may make reports relating to |
|
an investigation public after the investigation is complete but |
|
only if the name and any other personally identifiable information |
|
of a resident or client, authorized representative of a resident or |
|
client, family member of a resident or client, state developmental |
|
center, and state developmental center employee are redacted from |
|
the report and remain confidential. |
|
(d) The name, address, or other personally identifiable |
|
information of a person who files a complaint with the office of |
|
independent ombudsman, information generated by the office of |
|
independent ombudsman in the course of an investigation, and |
|
confidential records obtained by the office of independent |
|
ombudsman are confidential and not subject to disclosure under |
|
Chapter 552, Government Code, except as provided by this section. |
|
Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The |
|
independent ombudsman shall promote awareness among the public, |
|
residents, clients, and state developmental center employees of: |
|
(1) how the office may be contacted; |
|
(2) the purpose of the office; and |
|
(3) the services the office provides. |
|
Sec. 555.059. DUTIES AND POWERS. (a) The independent |
|
ombudsman shall: |
|
(1) evaluate the delivery of services to residents and |
|
clients to ensure that the rights of residents and clients are fully |
|
observed; |
|
(2) refer a complaint alleging the abuse, neglect, or |
|
exploitation of a resident or client to the Department of Family and |
|
Protective Services for investigation; |
|
(3) refer a complaint alleging a possible violation of |
|
an ICF-MR standard or condition of participation to the regulatory |
|
services division of the department; |
|
(4) refer a complaint alleging a criminal offense, |
|
other than an allegation of abuse, neglect, or exploitation of a |
|
resident or client, to the commission's office of inspector |
|
general; |
|
(5) conduct investigations of complaints, other than |
|
complaints alleging criminal offenses or the abuse, neglect, or |
|
exploitation of a resident or client, if the office determines |
|
that: |
|
(A) a resident or client or the resident's or |
|
client's family may be in need of assistance from the office; or |
|
(B) a complaint raises the possibility of a |
|
systemic issue in the state developmental center's provision of |
|
services; |
|
(6) conduct an annual audit of each state |
|
developmental center's policies, practices, and procedures to |
|
ensure that each resident and client is encouraged to exercise the |
|
resident's or client's rights, including: |
|
(A) the right to file a complaint; and |
|
(B) the right to due process; |
|
(7) prepare and deliver an annual report regarding the |
|
findings of each audit to the: |
|
(A) executive commissioner; |
|
(B) commissioner; |
|
(C) Aging and Disability Services Council; |
|
(D) governor; |
|
(E) lieutenant governor; |
|
(F) speaker of the house of representatives; |
|
(G) standing committees of the senate and house |
|
of representatives with primary jurisdiction over state |
|
developmental centers; and |
|
(H) state auditor; |
|
(8) require a state developmental center to provide |
|
access to all records, data, and other information under the |
|
control of the center that the independent ombudsman determines is |
|
necessary to investigate a complaint or to conduct an audit under |
|
this section; |
|
(9) review all final reports produced by the |
|
Department of Family and Protective Services and the regulatory |
|
services division of the department regarding a complaint referred |
|
by the independent ombudsman; |
|
(10) provide assistance to a resident, client, |
|
authorized representative of a resident or client, or family member |
|
of a resident or client who the independent ombudsman determines is |
|
in need of assistance, including advocating with an agency, |
|
provider, or other person in the best interests of the resident or |
|
client; and |
|
(11) make appropriate referrals under any of the |
|
duties and powers listed in this subsection. |
|
(b) The independent ombudsman may apprise a person who is |
|
interested in a resident's or client's welfare of the rights of the |
|
resident or client. |
|
(c) To assess whether a resident's or client's rights have |
|
been violated, the independent ombudsman may, in any matter that |
|
does not involve an alleged criminal offense or the abuse, neglect, |
|
or exploitation of a resident or client, contact or consult with an |
|
administrator, employee, resident, client, family member of a |
|
resident or client, expert, or other individual in the course of the |
|
investigation or to secure information. |
|
(d) Notwithstanding any other provision of this chapter, |
|
the independent ombudsman may not investigate an alleged criminal |
|
offense or the alleged abuse, neglect, or exploitation of a |
|
resident or client. The independent ombudsman shall refer an |
|
allegation of abuse, neglect, or exploitation of a resident or |
|
client to the Department of Family and Protective Services. |
|
Sec. 555.060. RETALIATION PROHIBITED. The department or a |
|
state developmental center may not retaliate against a department |
|
employee or state developmental center employee who in good faith |
|
makes a complaint to the office of independent ombudsman or |
|
cooperates with the office in an investigation. |
|
Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall |
|
establish a permanent, toll-free number for the purpose of |
|
receiving any information concerning the violation of a right of a |
|
resident or client. |
|
(b) The office shall ensure that: |
|
(1) the toll-free number is prominently displayed in |
|
the main administration area of a state developmental center and in |
|
each room in which a resident lives or a client receives services; |
|
and |
|
(2) a resident, a client, the authorized |
|
representative of a resident, and a state developmental center |
|
employee have confidential access to a telephone for the purpose of |
|
calling the toll-free number. |
|
SECTION 16. Section 591.003, Health and Safety Code, is |
|
amended by adding Subdivision (19-a) to read as follows: |
|
(19-a) "State developmental center" has the meaning |
|
provided by Section 531.002. |
|
SECTION 17. Section 593.042, Health and Safety Code, is |
|
amended by adding Subsection (c) to read as follows: |
|
(c) An application for commitment of a person to a |
|
residential care facility that is a state developmental center must |
|
include a statement demonstrating that the proposed resident meets |
|
the requirements for commitment to a state developmental center |
|
under Section 593.052(a-1). |
|
SECTION 18. Section 593.052, Health and Safety Code, is |
|
amended by amending Subsections (a) and (b) and adding Subsections |
|
(a-1) and (b-1) to read as follows: |
|
(a) A proposed resident may not be committed to a |
|
residential care facility unless: |
|
(1) the proposed resident is a person with mental |
|
retardation; |
|
(2) evidence is presented showing that because of |
|
retardation, the proposed resident: |
|
(A) represents a substantial risk of physical |
|
impairment or injury to himself or others; or |
|
(B) is unable to provide for and is not providing |
|
for the proposed resident's most basic personal physical needs; |
|
(3) the proposed resident cannot be adequately and |
|
appropriately habilitated in an available, less restrictive |
|
setting; and |
|
(4) the residential care facility: |
|
(A) provides habilitative services, care, |
|
training, and treatment appropriate to the proposed resident's |
|
needs; and |
|
(B) is not a state developmental center. |
|
(a-1) A proposed resident may not be committed to a |
|
residential care facility that is a state developmental center |
|
unless: |
|
(1) the proposed resident is a person with: |
|
(A) severe or profound mental retardation; or |
|
(B) mild or moderate mental retardation who: |
|
(i) has extraordinary medical needs; or |
|
(ii) exhibits dangerous behavior that |
|
represents a substantial risk of physical impairment or injury to |
|
self or others; |
|
(2) evidence is presented showing that the proposed |
|
resident: |
|
(A) represents a substantial risk of physical |
|
impairment or injury to self or others; or |
|
(B) is unable to provide for and is not providing |
|
for the proposed resident's most basic personal physical needs; |
|
(3) the proposed resident cannot be adequately and |
|
appropriately habilitated in an available, less restrictive |
|
setting; and |
|
(4) the residential care facility is a state |
|
developmental center that provides habilitative services, care, |
|
training, and treatment appropriate to the proposed resident's |
|
needs. |
|
(b) If it is determined that the requirements of Subsection |
|
(a) have been met and that long-term placement in a residential care |
|
facility, other than a state developmental center, is appropriate, |
|
the court shall commit the proposed resident for care, treatment, |
|
and training to a community center or the Department of Aging and |
|
Disability Services [department] when space is available in a |
|
residential care facility, other than a state developmental center. |
|
(b-1) If it is determined that the requirements of |
|
Subsection (a-1) have been met and that long-term placement in a |
|
residential care facility that is a state developmental center is |
|
appropriate, the court shall commit the proposed resident for care, |
|
treatment, and training to the Department of Aging and Disability |
|
Services when space is available in a state developmental center. |
|
SECTION 19. Section 48.252, Human Resources Code, is |
|
amended by adding Subsection (d) to read as follows: |
|
(d) If an investigation under this section reveals evidence |
|
of the abuse, neglect, or exploitation of a resident or client of a |
|
state developmental center as defined by Section 531.002, Health |
|
and Safety Code, or the ICF-MR component of the Rio Grande State |
|
Center, and a caseworker of the department or a supervisor of a |
|
caseworker believes that the abuse, neglect, or exploitation is a |
|
criminal offense, the caseworker or supervisor shall immediately |
|
notify the Health and Human Services Commission's office of |
|
inspector general and promptly provide the Health and Human |
|
Services Commission's office of inspector general with a copy of |
|
the department's investigation report. |
|
SECTION 20. Subchapter G, Chapter 48, Human Resources Code, |
|
is amended by adding Section 48.3015 to read as follows: |
|
Sec. 48.3015. INVESTIGATION OF REPORTS IN ICF-MR. (a) |
|
Notwithstanding Section 48.301, the department shall receive and |
|
investigate reports of abuse, neglect, or exploitation of an |
|
individual with a disability receiving services in an intermediate |
|
care facility for the mentally retarded. |
|
(b) The executive commissioner shall adopt rules governing |
|
investigations conducted under this section and the provision of |
|
services as necessary to alleviate abuse, neglect, or exploitation. |
|
SECTION 21. 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, other |
|
than investigations of reported abuse, neglect, or exploitation; |
|
(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 22. Subchapter D, Chapter 161, Human Resources |
|
Code, is amended by adding Section 161.076 to read as follows: |
|
Sec. 161.076. ON-SITE SURVEYS OF CERTAIN PROVIDERS. At |
|
least every 12 months, the department shall conduct an on-site |
|
survey in each group or foster home at which a home and |
|
community-based services provider provides services to a person |
|
with mental retardation. The department shall conduct the survey |
|
in a manner consistent with surveys conducted by the department |
|
under Section 142.009, Health and Safety Code. |
|
SECTION 23. (a) Not later than December 1, 2009, the Health |
|
and Human Services Commission's office of inspector general shall |
|
begin employing and commissioning peace officers as required by |
|
Section 531.1022, Government Code, as added by this Act. |
|
(b) Not later than September 1, 2014, the Department of |
|
Aging and Disability Services shall designate a state developmental |
|
center for alleged offender residents as required by Section |
|
555.002, Health and Safety Code, as added by this Act. |
|
(c) Not later than January 1, 2010, the Department of Aging |
|
and Disability Services shall develop the training required by |
|
Section 555.024, Health and Safety Code, as added by this Act. |
|
(d) The Department of Aging and Disability Services shall |
|
ensure that all center employees and direct care employees receive |
|
the training required by Section 555.024, Health and Safety Code, |
|
as added by this Act, regardless of when the employee was hired, not |
|
later than September 1, 2010. |
|
(e) Not later than December 1, 2009, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
adopt rules as required by Section 555.022, Health and Safety Code, |
|
as added by this Act. |
|
(f) Not later than December 1, 2009, the executive |
|
commissioner shall contract for mortality review services as |
|
required by Section 555.026, Health and Safety Code, as added by |
|
this Act. |
|
(g) Not later than December 1, 2009, the governor shall |
|
appoint the independent ombudsman as required by Section 555.053, |
|
Health and Safety Code, as added by this Act. |
|
SECTION 24. (a) Section 411.1144, Government Code, as |
|
added by this Act, and Section 555.021, Health and Safety Code, as |
|
added by this Act, apply only to background and criminal history |
|
checks performed on or after the effective date of this Act. |
|
(b) Not later than December 1, 2009, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
adopt rules as required by Section 555.021, Health and Safety Code, |
|
as added by this Act. |
|
SECTION 25. (a) The change in law made by Section |
|
551.022(e), Health and Safety Code, as added by this Act, and the |
|
change in law made by Section 551.0225, Health and Safety Code, as |
|
added by this Act, apply to the dismissal of an officer, teacher, or |
|
other employee of a state developmental center hired on or after the |
|
effective date of this Act. |
|
(b) The dismissal of an officer, teacher, or other employee |
|
of a state developmental center hired before the effective date of |
|
this Act is governed by the law in effect when the officer, teacher, |
|
or other employee was hired, and the former law is continued in |
|
effect for that purpose. |
|
SECTION 26. (a) Sections 593.042 and 593.052, Health and |
|
Safety Code, as amended by this Act, apply only to an order for |
|
commitment to a residential care facility based on an application |
|
filed on or after the effective date of this Act. |
|
(b) An order for commitment to a residential care facility |
|
based on an application filed before the effective date of this Act |
|
is governed by the law in effect at the time the application was |
|
filed, and the former law is continued in effect for that purpose. |
|
SECTION 27. This Act applies only to a report of suspected |
|
abuse, neglect, or exploitation that is made on or after September |
|
1, 2009. A report of suspected abuse, neglect, or exploitation that |
|
is made before September 1, 2009, is governed by the law in effect |
|
on the date the report was made, and that law is continued in effect |
|
for that purpose. |
|
SECTION 28. If before implementing any provision of this |
|
Act a state agency determines that a waiver or authorization from a |
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federal agency is necessary for implementation of that provision, |
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the agency affected by the provision shall request the waiver or |
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authorization and may delay implementing that provision until the |
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waiver or authorization is granted. |
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SECTION 29. The changes in law made by this Act in amending |
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Chapter 252, Health and Safety Code, and Section 161.071, Human |
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Resources Code, and adding Sections 48.3015 and 161.076, Human |
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Resources Code, take effect September 1, 2009. |
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SECTION 30. Except as provided by Section 29 of this Act, |
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this Act takes effect immediately if it receives a vote of |
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two-thirds of all the members elected to each house, as provided by |
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Section 39, Article III, Texas Constitution. If this Act does not |
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receive the vote necessary for immediate effect, this Act takes |
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effect September 1, 2009. |