By: Coleman H.B. No. 4691

A BILL TO BE ENTITLED

AN ACT

relating to the protection and care of individuals requiring long term care services and supports.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The Legislature recognizes that the state has a responsibility to ensure that individuals requiring long term care have the highest quality of care available and must be kept safe from abuse, neglect and exploitation.

SECTION 2. The Legislature recognizes the importance of ensuring quality care for individual requiring long term care services in state developmental centers and other settings.

SECTION 3. 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, the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's and a caseworker of the department or a supervisor of a caseworker knows of 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 4. 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 authorized 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 the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's.

(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 authorize 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);

(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); and

(3) obtain from any licensing board in this state disciplinary information maintained by that licensing board that relates to a person described by section (a).

SECTION 5. Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.02446 to read as follows:

Sec. 531.02446. SAFETY NET FOR COMMUNITY SERVICES. (a) In this section, "state developmental center" has the meaning assigned by Section 531.002, Health and Safety Code.

(b) The executive commissioner by rule shall develop safety net protocols to prevent individuals with mental retardation receiving services in the community from being placed in a state developmental center in an emergency situation who after receiving emergency care expects to return to community care.

(c) The executive commissioner shall ensure that the safety net protocols are designed to provide for temporary, emergency living arrangements for individuals at immediate risk of commitment to a state developmental center.

SECTION 6. 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, the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's. 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 the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's 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 the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's;

(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 7. 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 8. 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 9. 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, or exploitation;

(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, or exploitation.

(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 10. 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 11. 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 12. Sections 252.134(a), (b), (c), (d), and (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] 72 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 13. 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 14. 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 15. 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 16. 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 17. 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;

(6) keep a full record of the center's operations; and

(7) work to:

(i) reduce the turnover rate of the center employees;

(ii) develop and implement a training and continuing education program for the center employees; and

(iii) reduce incidences of abuse, neglect and exploitation of residents and clients.

(d) In accordance with departmental rules and operating procedures, the director of a state developmental center shall:

(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 18. 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 who:

(A) was committed to or transferred to a state developmental center under Chapter 46B or 46C, Code of Criminal Procedure, as a result of being charged with or convicted of an offense listed in Paragraph (D);

(B) is a child committed to or transferred to a state developmental center under Chapter 55, Family Code, as a result of being alleged by petition or having been found to have engaged in delinquent conduct constituting an offense listed in Paragraph (D);

(C) has inflicted, attempted to inflict, or made a serious threat of inflicting substantial physical harm to the resident's self or to another while committed to a state developmental center; or

(D) has been convicted of or charged with any of the following offenses:

(i) an offense under Chapter 19, Penal Code (criminal homicide);

(ii) an offense under Chapter 20, Penal Code (kidnapping and unlawful restraint);

(iii) an offense under Section 21.02, Penal Code (continuous sexual abuse of young child or children);

(iv) an offense under Section 22.011, Penal Code (sexual assault);

(v) an offense under Section 22.02, Penal Code (aggravated assault);

(vi) an offense under Section 22.021, Penal Code (aggravated sexual assault);

(vii) an offense under Section 22.04, Penal Code (injury to a child, elderly individual, or disabled individual);

(viii) an offense under Section 28.02, Penal Code (arson);

(ix) an offense under Section 29.02, Penal Code (robbery);

(x) an offense under Section 29.03, Penal Code (aggravated robbery); or

(xi) a conviction under the laws of another state, federal law, or the Uniform Code of Military Justice for an offense containing elements that are substantially similar to the elements of an offense listed by this paragraph.

(2) "Center employee" means an employee of a state developmental center the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's.

(3) "Client" means a person with mental retardation who receives ICF-MR services from a state developmental center the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's.

(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 the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's.

(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.

(e) The department shall ensure that the alleged offender resident is re-evaluated annually to determine if there placement in a separate section of a state developmental center is necessary and appropriate with regards to the alleged offenders:

(i) rehabilitation;

(ii) danger to others; and

(iii) civil rights of the alleged offender.

(f) The department shall ensure that the alleged offender population is provided enhanced security and monitoring to ensure that each is kept safe from each other.

[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 of a state developmental center the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's.

(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. NURSING HOME EMPLOYEE TRAINING. (a) Before a nursing home 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 nursing home serves including;

(a) the medically frail and elderly;

(b) individuals with mental retardation; and

(c) individuals with physical or mental disabilities;

(2) techniques for improving quality of life for and promoting the health and safety of the medically fragile and elderly, individuals with mental retardation, and individuals with physical or mental disabilities; and

(3) the conduct expected of nursing home 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 nursing home, including armed intruder lockdown procedures;

(2) an introduction to mental retardation, elderly physical and mental disabilities, autism spectrum disorder, and traumatic brain injury;

(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 and medications;

(7) recognizing and reporting:

(A) abuse, neglect, and exploitation of residents;

(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 40 hours of training and instructional information and 8 hours annually of continuing education 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 and self-determination;

(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;

(C) who require the use of adaptive devices and specialized equipment; or

(D) who have a physical or mental disability;

(10) communicating with residents and clients who use augmentative and alternative devices for communication;

(11) assisting residents and clients with personal hygiene;

(12) assisting residents and clients with dental hygiene;

(13) recognizing appropriate food textures;

(14) using proper feeding techniques to assist residents and clients with meals;

(15) addressing issues of PICA; and

(16) physical and nutritional management plans.

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 19. 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 20. Chapter 592, Health and Safety Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. USE OF RESTRAINTS IN STATE DEVELOPMENTAL CENTER

Sec. 592.101. DEFINITION. In this subchapter, "executive commissioner" means the executive commissioner of the Health and Human Services Commission.

Sec. 592.102. USE OF RESTRAINTS. The executive commissioner shall adopt rules to ensure that:

(1) a mechanical or physical restraint is not administered to a resident of a state developmental center unless the restraint is:

(A) necessary to prevent imminent physical injury to the resident or another; and

(B) the least restrictive restraint effective to prevent imminent physical injury;

(2) the administration of a mechanical or physical restraint to a resident of a state developmental center ends immediately once the imminent risk of physical injury abates; and

(3) a mechanical or physical restraint is not administered to a resident of a state developmental center as punishment or as part of a behavior plan.

Sec. 592.103. STRAITJACKETS PROHIBITED. A person may not use a straitjacket to restrain a resident of a state developmental center.

Sec. 592.104. CONFLICT WITH OTHER LAW. To the extent of a conflict between this subchapter and Chapter 322, this subchapter controls.

SECTION 21. 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 22. 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 23. 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, the ICF-MR component of the Rio Grande State Center, or a non-state operated ICF-MR's, and a caseworker of the department or a supervisor of a caseworker knows of 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 24. 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 25. Section 161.001, Human Resources Code, is amended by adding Subdivision (6) to read as follows:

(6) "State developmental center" has the meaning assigned by Section 531.002, Health and Safety Code.

SECTION 26. Section 161.052, Human Resources Code, is amended by amending Subsection (b) and adding Subsection (e) to read as follows:

(b) The executive commissioner shall prepare and by rule adopt personnel standards. The executive commissioner shall adopt personnel standards for direct care employees at state developmental centers that are designed to ensure the safety of and a high standard of care for residents of a state developmental center.

(e) Subject to the availability of funds, the department shall prescribe the number of direct care employees at state developmental centers and the salaries for those employees necessary to attract and maintain quality employees. The commissioner shall ensure that policies regarding employees at state developmental centers are designed to reduce turnover and ensure continuity of care for residents.

SECTION 27. Subchapter B, Chapter 161, Human Resources Code, is amended by adding Section 161.033 to read as follows:

Sec. 161.033. STATE DEVELOPMENTAL CENTER REQUIREMENTS FOR LONG-RANGE PLAN. In developing the long-range plan required by Section 533.032, Health and Safety Code, the department shall:

(1) include strategies for effectively serving the increasing number of state developmental center residents receiving community-based care;

(2) describe initiatives for effectively implementing the strategies required by Subdivision (1), including enhancing community services to assist residents through the development of:

(A) affordable housing options;

(B) alternatives for serving children;

(C) safety net and emergency services;

(D) specialized services for residents as the residents age;

(E) support services for the aging caregiver population; and

(F) improved monitoring of the health and safety of recipients of community-based services; and

(3) estimate the fiscal impact of each strategy and initiative, including the impact on department funding and the number of full-time equivalent department employees and the cost implications to other health and human services agencies.

SECTION 28. Subchapter D, Chapter 161, Human Resources Code, is amended by adding Sections 161.076 and 161.077 to read as follows:

Sec. 161.077. CHILDREN'S UNIT. (a) The department shall establish a centralized unit at the department to oversee long-term care and support for children with disabilities who receive services from the department.

(b) The children's unit shall oversee the permanency planning process required by Section 531.0245, Government Code, for children with disabilities who reside in a facility operated or licensed by the department.

SECTION 29. The Legislature recognizes the importance of ensuring quality care for individual requiring long term care services in nursing homes and other settings.

SECTION 30. 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 nursing home, and a caseworker of the department or a supervisor of a caseworker knows of 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 31. 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 NURSING HOMES. (a) The Department of State Health Services and the Department of Aging and Disability Services are authorized 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 employed a nursing home.

(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 authorized 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);

(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); and

(3) obtain from any licensing board in this state disciplinary information maintained by that licensing board that relates to a person described by section (a).

SECTION 32. Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.02446 to read as follows:

Sec. 531.02446. SAFETY NET FOR COMMUNITY SERVICES. (a) In this section, "state developmental center" has the meaning assigned by Section 531.002, Health and Safety Code.

(b) The executive commissioner by rule shall develop safety net protocols to prevent individuals with mental retardation receiving services in the community from being placed in a nursing home in an emergency situation.

(c) The executive commissioner shall ensure that the safety net protocols are designed to provide for temporary, emergency living arrangements for individuals at immediate risk of admittance to a nursing home who after receiving emergency care expects to return to community care.

SECTION 33. 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 nursing home. 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 nursing home;

(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 34. 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, or exploitation 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 35. 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, or exploitation shall refer the report to the Department of Family and Protective Services [department] or the designated agency.

SECTION 36. 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, or exploitation;

(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, or exploitation.

(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 37. 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 [beard] or the designated agency.

SECTION 38. 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 39. Sections 252.134(a), (b), (c), (d), and (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] 72 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] requiring long term care services and in [specific facilities] nursing homes. Information developed under this subsection is not confidential.

SECTION 40. 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 NURSING HOME DIRECTOR. (a) The director of nursing home is the administrative head of the center.

(b) The director of a nursing home 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 nursing home 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 nursing home;

(3) supervise repairs and improvements to the nursing home;

(4) ensure that nursing home 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;

(6) keep a full record of the nursing home's operations; and

(7) work to:

(i) reduce the turnover rate of the nursing home employees;

(ii) develop and implement a training and continuing education program for the nursing home employees; and

(iii) reduce incidences of abuse, neglect and exploitation of residents and clients.

(d) In accordance with departmental rules and operating procedures, the director of a nursing home shall:

(1) establish policy to govern the nursing home 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 41. Subtitle B, Title 7, Health and Safety Code, is amended by adding Chapter 555 to read as follows:

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 nursing home employee.

(b) The director of a nursing home shall enforce the policy adopted under Subsection (a) by performing necessary drug testing of the nursing home 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 nursing home employee who knows or reasonably suspects that another nursing home 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 nursing home.

Sec. 555.024. NURSING HOME EMPLOYEE TRAINING. (a) Before a nursing home 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 nursing home serves including;

(a) the medically frail and elderly;

(b) individuals with mental retardation; and

(c) individuals with physical or mental disabilities;

(2) techniques for improving quality of life for and promoting the health and safety of the medically fragile and elderly, individuals with mental retardation, and individuals with physical or mental disabilities; and

(3) the conduct expected of nursing home 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 nursing home, including armed intruder lockdown procedures;

(2) an introduction to mental retardation, elderly physical and mental disabilities, autism spectrum disorder, and traumatic brain injury;

(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 and medications;

(7) recognizing and reporting:

(A) abuse, neglect, and exploitation of residents;

(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 40 hours of training and instructional information and 8 hours annually of continuing education 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 and self-determination;

(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;

(C) who require the use of adaptive devices and specialized equipment; or

(D) who have a physical or mental disability;

(10) communicating with residents and clients who use augmentative and alternative devices for communication;

(11) assisting residents and clients with personal hygiene;

(12) assisting residents and clients with dental hygiene;

(13) recognizing appropriate food textures;

(14) using proper feeding techniques to assist residents and clients with meals;

(15) addressing issues of PICA; and

(16) physical and nutritional management plans.

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 of a nursing home.

(b) A review under this section shall be conducted in addition to any review conducted by the nursing home.

(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 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.

Sec. 555.027. MINIMUM EDUCATION REQUIREMENTS.

(1) a nursing home employee providing services to an individual requiring long term care services must have a high school diploma or GED equivalent.

(2) this does not apply to employees with advanced degrees or licensed by a state board.

[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 nursing homes. 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 nursing home 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 a nursing home 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 nursing home's provision of services;

(6) conduct an annual audit of each nursing homes '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 nursing home 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, a nursing home, or an employee of a nursing home may not retaliate against a department employee or nursing home 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 nursing home 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 nursing home employee have confidential access to a telephone for the purpose of calling the toll-free number.

SECTION 42. 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 43. Chapter 592, Health and Safety Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. USE OF RESTRAINTS IN STATE DEVELOPMENTAL CENTER

Sec. 592.101. DEFINITION. In this subchapter, "executive commissioner" means the executive commissioner of the Health and Human Services Commission.

Sec. 592.102. USE OF RESTRAINTS. The executive commissioner shall adopt rules to ensure that:

(1) a mechanical or physical restraint is not administered to a resident of a nursing home unless the restraint is:

(A) necessary to prevent imminent physical injury to the resident or another; and

(B) the least restrictive restraint effective to prevent imminent physical injury;

(2) the administration of a mechanical or physical restraint to a resident of a nursing home ends immediately once the imminent risk of physical injury abates; and

(3) a mechanical or physical restraint is not administered to a resident of a nursing home as punishment or as part of a behavior plan.

Sec. 592.103. STRAITJACKETS PROHIBITED. A person may not use a straitjacket to restrain a resident of a nursing home.

Sec. 592.104. CONFLICT WITH OTHER LAW. To the extent of a conflict between this subchapter and Chapter 322, this subchapter controls.

SECTION 44. 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 knows of 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 45. 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 A NURSING HOME. (a) Notwithstanding Section 48.301, the department shall receive and investigate reports of abuse, neglect, or exploitation of an individual receiving services in nursing home.

(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 46. Section 161.052, Human Resources Code, is amended by amending Subsection (b) and adding Subsection (e) to read as follows:

(b) The executive commissioner shall prepare and by rule adopt personnel standards. The executive commissioner shall adopt personnel standards for direct care employees at nursing homes that are designed to ensure the safety of and a high standard of care for residents of a nursing home.

(e) Subject to the availability of funds, the department shall prescribe the minimum salaries for employees at a nursing home necessary to attract and maintain quality employees. The commissioner shall ensure that policies regarding employees at nursing homes are designed to reduce turnover and ensure continuity of care for residents.

SECTION 47. Subchapter B, Chapter 161, Human Resources Code, is amended by adding Section 161.033 to read as follows:

Sec. 161.033. REQUIREMENTS FOR LONG-RANGE PLAN. In developing the long-range plan required by Section 533.032, Health and Safety Code, the department shall:

(1) include strategies for effectively serving the increasing number of state developmental center residents receiving community-based care;

(2) describe initiatives for effectively implementing the strategies required by Subdivision (1), including enhancing community services to assist residents through the development of:

(A) affordable housing options;

(B) safety net and emergency services;

(C) specialized services for residents as the residents age;

(D) support services for the aging caregiver population; and

(E) improved monitoring of the health and safety of recipients of community-based services;

(F) the shortage of nurses;

(G) prevention of acute care hospitalizations for the medically frail, elderly, and mentally retarded;

(H) reduced turnover and ensure continuity of care for residents; and

(I) increased wages to attract and maintain quality personnel; and

(3) estimate the fiscal impact of each strategy and initiative, including the impact on department funding and the number of full-time equivalent department employees and the cost implications to other health and human services agencies.

SECTION 48. 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 49. Subchapter D, Chapter 161, Human Resources Code, is amended by adding Sections 161.076 and 161.077 to read as follows:

Sec. 161.076. ON-SITE SURVEYS OF CERTAIN PROVIDERS. The department may conduct an on-site survey in each nursing home. 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 50. The Legislature recognizes the importance of ensuring quality care for individual requiring long term care services in community based settings and other settings.

SECTION 51. DEFINITIONS. Section 261.404, Family Code; Subchapter F, Chapter 411, Government Code; Section 252.122(a), Health and Safety Code; Subtitle B, Title 7, Health and Safety Code; Chapter 592, Health and Safety Code; Section 48.252, Human Resources Code; Section 161.052, Human Resources Code; and Subchapter B, Chapter 161, Human Resources Code are amended by adding the definition as follows:

(1) "Individual requiring long term care services" means an individual who is a person receiving services through a Medicaid waiver.

(2) "Medicaid waiver" means a Medicaid wavier or demonstration program authorized the Centers for Medicare and Medicaid Services or in federal law including 1915(b) and 1915(c) waivers.

(3) "Community based setting" means a location where an individual requiring long term care services receives services under a Medicaid waiver.

SECTION 52. Section 261.404, Family Code, is amended by adding Subsection (b-1) to read as follow

(b-1) If an investigation under this section reveals evidence of abuse, neglect, or exploitation of an individual requiring long term care services, and a caseworker of the department or a supervisor of a caseworker knows of 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 53. 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 PROVIDING SERVICES TO PERSONS REQUIRING LONG TERM CARE SERVICES. (a) The Department of State Health Services and the Department of Aging and Disability Services are authorized 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 employed to provide services under a Medicaid waiver.

(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 authorized 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);

(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); and

(3) obtain from any licensing board in this state disciplinary information maintained by that licensing board that relates to a person described by section (a).

SECTION 54. Subchapter B, Chapter 531, Government Code, is amended by adding Section 531.02446 to read as follows:

Sec. 531.02446. SAFETY NET FOR COMMUNITY SERVICES. (a) In this section, "state developmental center" has the meaning assigned by Section 531.002, Health and Safety Code.

(b) The executive commissioner by rule shall develop safety net protocols to prevent individuals with mental retardation receiving services in the community from being placed in a nursing home or state developmental center in an emergency situation.

(c) The executive commissioner shall ensure that the safety net protocols are designed to provide for temporary, emergency living arrangements for individuals at immediate risk of admittance to a nursing home or state developmental center who after receiving emergency care expects to return to community care.

SECTION 55. 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 an individual requiring long term care services. 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 person providing services under a Medicaid waiver;

(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 56. 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, or exploitation 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 57. 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, or exploitation shall refer the report to the Department of Family and Protective Services [department] or the designated agency.

SECTION 58. 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, or exploitation;

(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, or exploitation.

(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 59. 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 60. 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 61. Sections 252.134(a), (b), (c), (d), and (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] 72 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] requiring long term care services and in [specific facilities] community based settings. Information developed under this subsection is not confidential.

SECTION 62. 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 PROVIDERS OF SERVICES UNDER MEDICAID WAIVER. (a) The director of a provider of services under a Medicaid waiver is the administrative head of the community based services.

(b) The director of provider of services under a Medicaid waiver has the custody of and responsibility to care for the buildings, grounds, furniture, and other property relating to the community based services.

(c) The director of a provider of services under a Medicaid waiver:

(1) oversee the admission and discharge of individuals requiring long term care services;

(2) keep a register of all individuals requiring long term care services admitted to or discharged from the community based setting;

(3) supervise repairs and improvements to the community based setting;

(4) ensure that community based setting 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;

(6) keep a full record of the community based setting's operations; and

(7) work to:

(i) reduce the turnover rate of the providers of services under Medicaid waivers;

(ii) develop and implement a training and continuing education program for the providers of services under Medicaid waivers; and

(iii) reduce incidences of abuse, neglect and exploitation of individuals requiring long term care services.

(d) In accordance with departmental rules and operating procedures, the director of a provider of services under a Medicaid waiver:

(1) establish policy to govern the a provider of services under a Medicaid waiver 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 63. Subtitle B, Title 7, Health and Safety Code, is amended by adding Chapter 555 to read as follows:

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 provider of services under a Medicaid waiver.

(b) The director of a provider of services under a Medicaid waiver shall enforce the policy adopted under Subsection (a) by performing necessary drug testing of the nursing home 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 provider of services under a Medicaid waiver who knows or reasonably suspects that another a provider of services under a Medicaid waiver 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 a provider of services under a Medicaid waiver.

Sec. 555.024. PROVIDER OF SERVICES UNDER A MEDICAID WAIVER TRAINING. (a) Before a provider of services under a Medicaid waiver 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 provider of services under a Medicaid waiver. The department shall ensure the basic provider competency course focuses on:

(1) the uniqueness of the individuals the nursing home serves including;

(a) the medically frail and elderly;

(b) individuals with mental retardation;

(c) individuals with physical or mental disabilities; and

(c) children requiring long term care services;

(2) techniques for improving quality of life for and promoting the health and safety of the medically fragile and elderly, individuals with mental retardation, children requiring long term care services, and individuals with physical or mental disabilities; and

(3) the conduct expected of providers of services under a Medicaid waiver.

(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 community based setting, including armed intruder lockdown procedures;

(2) an introduction to mental retardation, elderly physical and mental disabilities, autism spectrum disorder, and traumatic brain injury;

(3) an introduction to mental illness and dual diagnosis;

(4) the rights of individuals with disabilities who receive services from the department;

(5) respecting personal choices made by individuals requiring long term care services;

(6) the safe and proper use of restraints and medications;

(7) recognizing and reporting:

(A) abuse, neglect, and exploitation of individuals requiring long term care services;

(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 providers of services under a Medicaid wavier.

(c) In addition to the training required by Subsection (a) and before a direct care provider of services under a Medicaid waiver begins to perform the direct care employee's duties without direct supervision, the department shall provide a direct care provider with 40 hours of training and instructional information and 8 hours annually of continuing education 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 and self-determination;

(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;

(C) who require the use of adaptive devices and specialized equipment; or

(D) who have a physical or mental disability;

(10) communicating with individuals requiring long term care services who use augmentative and alternative devices for communication;

(11) assisting individuals requiring long term care services with personal hygiene;

(12) assisting individuals requiring long term care services with dental hygiene;

(13) recognizing appropriate food textures;

(14) using proper feeding techniques to assist individuals requiring long term care services with meals;

(15) addressing issues of PICA; and

(16) physical and nutritional management plans.

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 an individuals requiring long term care services.

(b) A review under this section shall be conducted in addition to any review conducted by the provider of services under a Medicaid waiver.

(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 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.

Sec. 555.027. MINIMUM EDUCATION REQUIREMENTS.

(1) a provider of services under a Medicaid waiver must have a high school diploma or GED equivalent.

(2) this does not apply to employees with advanced degrees or licensed by a state board.

[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 individuals requiring long term care services. 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 nursing home 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 a community based setting 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 provider of services under a Medicaid waiver's provision of services;

(6) conduct an annual audit of each provider of services under a Medicaid waiver policies, practices, and procedures to ensure that each individual requiring long term care services is encouraged to exercise the individual'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 provider of services under a Medicaid waiver 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 provider, or a person providing care to an individual requiring long term care services against a that person 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 an individual requiring long term care services.

(b) The office shall ensure that:

(1) the toll-free number is prominently displayed in each room in which an individual requiring long term care services lives or receives services; and

(2) an individual requiring long term care services, the authorized representative of an individual requiring long term care services, and a provider of services under a Medicaid waiver have confidential access to a telephone for the purpose of calling the toll-free number.

SECTION 64. 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 65. Chapter 592, Health and Safety Code, is amended by adding Subchapter E to read as follows:

SUBCHAPTER E. USE OF RESTRAINTS IN STATE DEVELOPMENTAL CENTER

Sec. 592.101. DEFINITION. In this subchapter, "executive commissioner" means the executive commissioner of the Health and Human Services Commission.

Sec. 592.102. USE OF RESTRAINTS. The executive commissioner shall adopt rules to ensure that:

(1) a mechanical or physical restraint is not administered to an individual requiring long term care services unless the restraint is:

(A) necessary to prevent imminent physical injury to the individual requiring long term care services or another; and

(B) the least restrictive restraint effective to prevent imminent physical injury;

(2) the administration of a mechanical or physical restraint to an individual requiring long term care services ends immediately once the imminent risk of physical injury abates; and

(3) a mechanical or physical restraint is not administered to an individual requiring long term care services as punishment or as part of a behavior plan.

Sec. 592.103. STRAITJACKETS PROHIBITED. A person may not use a straitjacket to restrain an individual requiring long term care services.

Sec. 592.104. CONFLICT WITH OTHER LAW. To the extent of a conflict between this subchapter and Chapter 322, this subchapter controls.

SECTION 66. 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 an individual requiring long term care services, and a caseworker of the department or a supervisor of a caseworker knows of 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 67. 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 A COMMUNITY BASED SETTING. (a) Notwithstanding Section 48.301, the department shall receive and investigate reports of abuse, neglect, or exploitation of an individual requiring long term care services.

(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 68. Section 161.052, Human Resources Code, is amended by amending Subsection (b) and adding Subsection (e) to read as follows:

(b) The executive commissioner shall prepare and by rule adopt personnel standards. The executive commissioner shall adopt personnel standards for providers of services under a Medicaid waiver that are designed to ensure the safety of and a high standard of care for residents of a nursing home.

(e) Subject to the availability of funds, the department shall prescribe the minimum salaries for providers of services under a Medicaid waiver necessary to attract and maintain quality employees. The commissioner shall ensure that policies regarding providers of services under a Medicaid waiver are designed to reduce turnover and ensure continuity of care for individuals requiring long term care services.

SECTION 69. Subchapter B, Chapter 161, Human Resources Code, is amended by adding Section 161.033 to read as follows:

Sec. 161.033. REQUIREMENTS FOR LONG-RANGE PLAN. In developing the long-range plan required by Section 533.032, Health and Safety Code, the department shall:

(1) include strategies for effectively serving the increasing number of state developmental center residents receiving community-based care;

(2) describe initiatives for effectively implementing the strategies required by Subdivision (1), including enhancing community services to assist residents through the development of:

(A) affordable housing options;

(B) alternatives for serving children;

(C) safety net and emergency services;

(D) specialized services for residents as the residents age;

(E) support services for the aging caregiver population; and

(F) improved monitoring of the health and safety of recipients of community-based services;

(G) the shortage of nurses;

(H) prevention of acute care hospitalizations;

(I) reduced turnover and ensure continuity of care for residents; and

(J) increased wages to attract and maintain quality personnel; and

(3) estimate the fiscal impact of each strategy and initiative, including the impact on department funding and the number of full-time equivalent department employees and the cost implications to other health and human services agencies.

SECTION 70. 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 71. Subchapter D, Chapter 161, Human Resources Code, is amended by adding Sections 161.076 and 161.077 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.

Sec. 161.077. CHILDREN'S UNIT. (a) The department shall establish a centralized unit at the department to oversee long-term care and support for children with disabilities who receive services from the department.

(b) The children's unit shall oversee the permanency planning process required by Section 531.0245, Government Code, for children with disabilities who reside in a facility operated or licensed by the department.

SECTION 72. (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.

(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.

(h) Not later than January 1, 2010, the executive commissioner of the Health and Human Services Commission shall review the use of restraints in state developmental centers and adopt the rules required under Section 592.102, Health and Safety Code, as added by this Act.

SECTION 73. As soon as possible after the effective date of this Act, and subject to the availability of funds, the Department of Aging and Disability Services shall hire additional direct care employees at state developmental centers and increase the salaries for all direct care employees as necessary to attract and maintain quality employees.

SECTION 74. (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 75. (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 76. (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 77. 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 78. If before implementing any provision of this Act a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.

SECTION 79. The changes in law made by this Act in amending Chapter 252, Health and Safety Code, and Section 161.071, Human Resources Code, and adding Sections 48.3015 and 161.076, Human Resources Code, take effect September 1, 2009.

SECTION 80. Except as provided by Section 79 of this Act, this Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.