81R2210 UM-F
 
  By: Nelson S.B. No. 277
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the Department of Family and Protective Services,
  including protective services and investigations of alleged abuse,
  neglect, or exploitation for certain adults who are elderly or
  disabled; providing a criminal penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 59.006(a), Finance Code, is amended to
  read as follows:
         (a)  This section provides the exclusive method for
  compelled discovery of a record of a financial institution relating
  to one or more customers but does not create a right of privacy in a
  record. This section does not apply to and does not require or
  authorize a financial institution to give a customer notice of:
               (1)  a demand or inquiry from a state or federal
  government agency authorized by law to conduct an examination of
  the financial institution;
               (2)  a record request from a state or federal
  government agency or instrumentality under statutory or
  administrative authority that provides for, or is accompanied by, a
  specific mechanism for discovery and protection of a customer
  record of a financial institution, including a record request from
  a federal agency subject to the Right to Financial Privacy Act of
  1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
  Internal Revenue Service under Section 1205, Internal Revenue Code
  of 1986;
               (3)  a record request from or report to a government
  agency arising out of the investigation or prosecution of a
  criminal offense or the investigation of alleged abuse, neglect, or
  exploitation of an elderly or disabled person in accordance with
  Chapter 48, Human Resources Code;
               (4)  a record request in connection with a garnishment
  proceeding in which the financial institution is garnishee and the
  customer is debtor;
               (5)  a record request by a duly appointed receiver for
  the customer;
               (6)  an investigative demand or inquiry from a state
  legislative investigating committee;
               (7)  an investigative demand or inquiry from the
  attorney general of this state as authorized by law other than the
  procedural law governing discovery in civil cases; or
               (8)  the voluntary use or disclosure of a record by a
  financial institution subject to other applicable state or federal
  law.
         SECTION 2.  Section 411.114, Government Code, is amended to
  read as follows:
         Sec. 411.114.  ACCESS TO CRIMINAL HISTORY RECORD
  INFORMATION: DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY]
  SERVICES.  (a)(1) In this subsection:
                     (A)  "Child," "child-care facility,"
  "child-placing agency," and "family home" have the meanings
  assigned by Section 42.002, Human Resources Code.
                     (B)  "Elderly person" has the meaning assigned by
  Section 48.002, Human Resources Code.
                     (C)  "Maternity home" has the meaning assigned by
  Section 249.001, Health and Safety Code.
                     (D)  "Person with a disability" means a disabled
  person as defined by Section 48.002, Human Resources Code.
                     [(E)     "Ward" has the meaning assigned by Section
  601, Texas Probate Code.]
               (2)  The Department of Family and Protective Services
  shall obtain from the department criminal history record
  information maintained by the department that relates to a person
  who is:
                     (A)  an applicant for a license, registration,
  certification, or listing under Chapter 42, Human Resources Code,
  or Chapter 249, Health and Safety Code;
                     (B)  an owner, operator, or employee of or an
  applicant for employment by a child-care facility, child-placing
  agency, family home, or maternity home licensed, registered,
  certified, or listed under Chapter 42, Human Resources Code, or
  Chapter 249, Health and Safety Code;
                     (C)  a person 14 years of age or older who will be
  regularly or frequently working or staying in a child-care
  facility, family home, or maternity home while children are being
  provided care, other than a child in the care of the home or
  facility;
                     (D)  an applicant selected for a position with the
  Department of Family and Protective Services, the duties of which
  include direct delivery of protective services to children, elderly
  persons, or persons with a disability;
                     (E)  an employee of, an applicant for employment
  with, or a volunteer or an applicant volunteer with a business
  entity or person that contracts with the Department of Family and
  Protective Services to provide direct delivery of protective
  services to children, elderly persons, or persons with a
  disability, if the person's duties or responsibilities include
  direct contact with children, elderly persons, or persons with a
  disability;
                     (F)  a registered volunteer with the Department of
  Family and Protective Services;
                     (G)  a person providing or applying to provide
  in-home, adoptive, or foster care for children in the care of the
  Department of Family and Protective Services and other persons
  living in the residence in which the child will reside;
                     (H)  a Department of Family and Protective
  Services employee who is engaged in the direct delivery of
  protective services to children, elderly persons, or persons with a
  disability;
                     (I)  an alleged perpetrator in [a person who is
  the subject of] a report the Department of Family and Protective
  Services receives alleging that the person has abused, neglected,
  or exploited a child, an elderly person, or a person with a
  disability, provided that:
                           (i)  the report alleges the person has
  engaged in conduct that meets the statutory definition of abuse,
  neglect, or exploitation under Chapter 261, Family Code, or Chapter
  48, Human Resources Code; and
                           (ii)  the person [who is the subject of the
  report] is not also the victim of the alleged conduct;
                     (J)  a person providing child care for a child who
  is in the care of the Department of Family and Protective Services
  and who is or will be receiving adoptive, foster, or in-home care;
                     (K)  through a contract with a nonprofit
  management center, an employee of, an applicant for employment
  with, or a volunteer or an applicant volunteer with a nonprofit,
  tax-exempt organization that provides any service that involves the
  care of or access to a child [children], an elderly person
  [persons], or a person [persons] with a disability; or
                     (L)  an applicant for a child-care administrator
  or child-placing agency administrator license under Chapter 43,
  Human Resources Code.
               (3)  The Department of Family and Protective [and
  Regulatory] Services is entitled to obtain from the department
  criminal history record information maintained by the department
  that relates to a person who is:
                     (A)  a volunteer or applicant volunteer with a
  local affiliate in this state of Big Brothers/Big Sisters of
  America;
                     (B)  a volunteer or applicant volunteer with the
  "I Have a Dream/Houston" program;
                     (C)  a volunteer or applicant volunteer with an
  organization that provides court-appointed special advocates for
  abused or neglected children;
                     (D)  a person providing, at the request of the
  child's parent, in-home care for a child who is the subject of a
  report alleging the child has been abused or neglected;
                     (E)  a volunteer or applicant volunteer with a
  Texas chapter of the Make-a-Wish Foundation of America;
                     (F)  a person providing, at the request of the
  child's parent, in-home care for a child only if the person gives
  written consent to the release and disclosure of the information;
                     (G)  a child who is related to the caretaker, as
  determined under Section 42.002, Human Resources Code, and who
  resides in or is present in a child-care facility, family home, or
  maternity home, other than a child described by Subdivision (2)(C),
  or any other person who has unsupervised access to a child in the
  care of a child-care facility, family home, or maternity home;
                     (H)  an applicant for a position with the
  Department of Family and Protective [and Regulatory] Services,
  other than a position described by Subdivision (2)(D), regardless
  of the duties of the position;
                     (I)  a volunteer or applicant volunteer with the
  Department of Family and Protective [and Regulatory] Services,
  other than a registered volunteer, regardless of the duties to be
  performed;
                     (J)  a person providing or applying to provide
  in-home, adoptive, or foster care for children to the extent
  necessary to comply with Subchapter B, Chapter 162, Family Code;
                     (K)  a Department of Family and Protective [and
  Regulatory] Services employee, other than an employee described by
  Subdivision (2)(H), regardless of the duties of the employee's
  position;
                     (L)  a relative of a child in the care of the
  Department of Family and Protective [and Regulatory] Services, to
  the extent necessary to comply with Section 162.007, Family Code;
                     (M)  a person, other than an alleged perpetrator
  in [the subject of] a report described in Subdivision (2)(I),
  living in the residence in which the alleged victim of the report
  resides;
                     (N)  [a contractor or an employee of a contractor
  who delivers services to a ward of the Department of Protective and
  Regulatory Services under a contract with the estate of the ward;
                     [(O)     a person who seeks unsupervised visits with
  a ward of the Department of Protective and Regulatory Services,
  including a relative of the ward; or
                     [(P)]  an employee, volunteer, or applicant
  volunteer of a children's advocacy center under Subchapter E,
  Chapter 264, Family Code, including a member of the governing board
  of a center; or
                     (O)  an employee of, an applicant for employment
  with, or a volunteer or an applicant volunteer with an entity or
  person that contracts with the Department of Family and Protective
  Services and has access to confidential information in the
  department's records, if the employee, applicant, volunteer, or
  applicant volunteer has or will have access to that confidential
  information.
               (4)  Subject to Section 411.087, the Department of
  Family and Protective [and Regulatory] Services is entitled to:
                     (A)  obtain through the Federal Bureau of
  Investigation criminal history record information maintained or
  indexed by that bureau that pertains to a person described by
  Subdivision (2) or (3); and
                     (B)  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
  Subdivision (2) or (3). Law enforcement entities shall expedite
  the furnishing of such information to Department of Family and 
  Protective [and Regulatory] Services workers to ensure prompt
  criminal background checks for the safety of alleged victims and
  Department of Family and Protective [and Regulatory] Services
  workers.
               (5)  The Department of Family and Protective [and
  Regulatory] Services may not use the authority granted under this
  section to harass an employee or volunteer. The executive
  commissioner of the Health and Human Services Commission [Board of
  Protective and Regulatory Services] shall adopt rules to prevent
  the harassment of an employee or volunteer through the request and
  use of criminal records.
               (6)  Criminal history record information obtained by
  the Department of Family and Protective [and Regulatory] Services
  under this subsection may not be released to any person except:
                     (A)  on court order;
                     (B)  with the consent of the person who is the
  subject of the criminal history record information;
                     (C)  for purposes of an administrative hearing
  held by the Department of Family and Protective [and Regulatory]
  Services concerning the person who is the subject of the criminal
  history record information; or
                     (D)  as provided by Subdivision (7).
               (7)  The Department of Family and Protective [and
  Regulatory] Services is not prohibited from releasing criminal
  history record information obtained under this subsection to:
                     (A)  the person who is the subject of the criminal
  history record information;
                     (B)  a child-care facility, child-placing agency,
  family home, or maternity home listed in Subdivision (2) that
  employs or is considering employing the person who is the subject of
  the criminal history record information;
                     (C)  a person or business entity described by
  Subdivision (2)(E) or (3) who uses or intends to use the services of
  the volunteer or employs or is considering employing the person who
  is the subject of the criminal history record information; [or]
                     (D)  an adult residing with a child, elderly
  person, or person with a disability and the person who is the
  subject of the criminal history record information, if the
  Department of Family and Protective [and Regulatory] Services
  determines that the release of information to the adult is
  necessary to ensure the safety or welfare of the child, elderly
  person, or person with a disability or the adult; or
                     (E)  an elderly or disabled person who is an
  alleged victim of abuse, neglect, or exploitation, or an adult who
  resides with the alleged victim, and who also resides with the
  alleged perpetrator of that abuse, neglect, or exploitation if:
                           (i)  the alleged perpetrator is the subject
  of the criminal history record information; and
                           (ii)  the Department of Family and
  Protective Services determines that the release of information to
  the elderly or disabled person or adult is necessary to ensure the
  safety or welfare of the elderly or disabled person.
         (b)  The failure or refusal to provide a complete set of
  fingerprints or a complete name on request constitutes good cause
  for dismissal or refusal to hire, as applicable, with regard to a
  volunteer of or an employee or applicant for permanent or temporary
  employment with the Department of Family and Protective [and
  Regulatory] Services, or a facility, home, business, or other
  entity, if the volunteer position, employment, or potential
  employment involves direct interaction with or the opportunity to
  interact and associate with children.
         (c)  The Department of Family and Protective [and
  Regulatory] Services may charge an organization or person that
  requests criminal history record information under Subsection
  (a)(3) a fee in an amount necessary to cover the costs of obtaining
  the information on the organization's or person's behalf.
         SECTION 3.  Section 48.002(a)(5), Human Resources Code, is
  amended to read as follows:
               (5)  "Protective services" means the services
  furnished by the department or by a protective services agency to an
  elderly or disabled person who has been determined to be in a state
  of abuse, neglect, or exploitation or to a relative or caretaker of
  an elderly or disabled person if the department determines the
  services are necessary to prevent the elderly or disabled person
  from returning to a state of abuse, neglect, or exploitation. The
  term does not include the services of the department or another
  protective services agency in conducting an investigation
  regarding alleged abuse, neglect, or exploitation of an elderly or
  disabled person. These services may include social casework, case
  management, and arranging for psychiatric and health evaluation,
  home care, day care, social services, health care, respite
  services, and other services consistent with this chapter.
         SECTION 4.  Section 48.006(a), Human Resources Code, is
  amended to read as follows:
         (a)  Subject to the availability of funds, the department
  shall develop a community satisfaction survey that solicits
  information regarding the department's performance with respect to
  providing investigative and adult protective services.  In each
  region, the department shall send the survey at least biennially
  [annually] to:
               (1)  stakeholders in the adult protective services
  system, including local law enforcement agencies and prosecutors'
  offices;
               (2)  protective services agencies, including nonprofit
  agencies; and
               (3)  courts with jurisdiction over probate matters.
         SECTION 5.  Section 48.053, Human Resources Code, is amended
  to read as follows:
         Sec. 48.053.  FALSE REPORT; PENALTY.  (a) A person commits
  an offense if the person knowingly or intentionally reports
  information as provided in this chapter that the person knows is
  false or lacks factual foundation.
         (b)  An offense under this section is a Class A [B]
  misdemeanor.
         SECTION 6.  Section 48.152, Human Resources Code, is amended
  to read as follows:
         Sec. 48.152.  INVESTIGATION.  (a) An investigation by the
  department or a state agency shall include an interview with the
  elderly or disabled person, if appropriate, and with persons
  thought to have knowledge of the circumstances. If the elderly or
  disabled person refuses to be interviewed or cannot be interviewed
  because of a physical or mental impairment, the department shall
  continue the investigation by interviewing other persons thought to
  have knowledge relevant to the investigation.
         (b)  The investigation may include an interview with an
  alleged juvenile perpetrator of the alleged abuse, neglect, or
  exploitation.
         (c)  The department or state agency may conduct an interview
  under this section in private or may include any person the
  department or agency determines is necessary.
         SECTION 7.  Section 48.1521(b), Human Resources Code, is
  amended to read as follows:
         (b)  Each county with a population of 250,000 or more shall
  appoint persons to serve as standing members of a special task unit
  to monitor cases that arise in the county and require monitoring as
  provided by Subsection (a).  The standing members of each special
  task unit must include:
               (1)  a provider of mental health services or aging
  services or a representative of a nonprofit entity serving persons
  with disabilities;
               (2)  a representative of a law enforcement agency;
  [and]
               (3)  a legal expert; and
               (4)  a physician, nurse, or other medical professional.
         SECTION 8.  Sections 48.154(a), (b), (c), (d), and (e),
  Human Resources Code, are amended to read as follows:
         (a)  The department or another state agency, as appropriate,
  shall have access to any records or documents, including
  client-identifying information, financial records, and medical and
  psychological records, necessary to the performance of the
  department's or state agency's duties under this chapter. The
  duties include but are not limited to the investigation of abuse,
  neglect, or exploitation or the provisions of services to an
  elderly or disabled person. A person, [or] agency, or institution
  that has a record or document that the department or state agency
  needs to perform its duties under this chapter shall, without
  unnecessary delay, make the record or document available to the
  department or state agency that requested the record or document.
         (b)  The department is exempt from the payment of a fee
  otherwise required or authorized by law to obtain a financial
  record from a person or a medical record, including a mental health
  record, from a hospital or health care provider if the request for a
  record is made in the course of an investigation by the department.
         (c)  If the department or another state agency cannot obtain
  access to a record or document that is necessary to properly conduct
  an investigation or to perform another duty under this chapter, the
  department or state agency may petition the probate court or the
  statutory or constitutional county court having probate
  jurisdiction for access to the record or document.
         (d)  On good cause shown, the court shall order the person,
  agency, or institution who has [denied access to] a requested
  record or document to allow the department or state agency to have
  access to that record or document under the terms and conditions
  prescribed by the court.
         (e)  A person, agency, or institution who has a requested
  record or document is entitled to notice and a hearing on a [the]
  petition filed under this section.
         SECTION 9.  Section 48.203(d), Human Resources Code, is
  amended to read as follows:
         (d)  Except as provided by Section 48.208, if [If] an elderly
  or disabled person withdraws from or refuses consent to voluntary
  protective services, the services may not be provided.
         SECTION 10.  Section 48.204, Human Resources Code, is
  amended to read as follows:
         Sec. 48.204.  AGENCY POWERS.  A protective services agency
  may furnish protective services to an elderly or disabled person
  with the person's consent or to a relative or caretaker of an
  elderly or disabled person on behalf of the elderly or disabled
  person with the relative's or caregiver's consent or, if the elderly
  or disabled person lacks the capacity to consent, without that
  person's consent as provided by this chapter.
         SECTION 11.  Sections 48.208(c-3), (e), (e-2), (f), and (h),
  Human Resources Code, are amended to read as follows:
         (c-3)  An assessment of the elderly or disabled person's
  psychological status must be performed by a licensed psychologist,
  licensed professional counselor, or master social worker who has
  training and expertise in issues related to abuse, neglect, and
  exploitation.  The person performing the assessment shall sign a
  report stating:
               (1)  that the elderly or disabled person is reported to
  be suffering from abuse, neglect, or exploitation, which may
  present a threat to the person's life or physical safety; and
               (2)  that in the professional opinion of the licensed
  psychologist, licensed professional counselor, or master social
  worker, as applicable, the issuance of an emergency order
  authorizing protective services without the elderly or disabled
  person's consent is necessary under the circumstances.
         (e)  The emergency order expires on the earlier of [at] the
  end of the 10th day after [72 hours from] the date [time] the order
  is rendered or the end of the 10th day after the date the person was
  removed to safer surroundings if the emergency order was rendered
  subsequent to the removal of the person to safer surroundings in
  accordance with Subsection (h), unless:
               (1)  the emergency order terminates as provided by
  Subsection (e-1);
               (2)  the 10-day [72-hour] period ends on a Saturday,
  Sunday, or legal holiday in which event the order is automatically
  extended to 4 p.m. on the first succeeding business day; or
               (3)  the court extends the order as provided by
  Subsection (e-2).
         (e-2)  The court, after notice and a hearing, may extend an
  emergency order issued under this section  for a period of not more
  than 30 days after the date the original emergency order for
  protective services was rendered. The court, after notice and a
  hearing and for good cause shown, may grant a second extension of an
  emergency order of not more than an additional 30 days. The court
  may not grant more than two extensions of the original emergency
  order.  An extension order that ends on a Saturday, Sunday, or
  legal holiday is automatically extended to 4 p.m. on the first
  succeeding business day.  The court may modify or terminate the
  emergency order on petition of the department, the incapacitated
  person, or any person interested in the person's [his] welfare.
         (f)  Any medical facility, emergency medical services
  provider, or physician who provides treatment to or who transports
  [treating] an elderly or disabled person pursuant to an emergency
  order under Subsection (d) or an emergency authorization under
  Subsection (h) [this chapter] is not liable for any damages arising
  from the treatment or transportation, except those damages
  resulting from the negligence of the facility, provider, or
  physician.
         (h)  If the department cannot obtain an emergency order under
  this section because the court is closed on a Saturday, Sunday, or
  legal holiday or after 5 p.m., the department may remove or
  authorize an appropriate transportation service, including an
  emergency medical services provider, to remove the elderly or
  disabled person to safer surroundings, authorize medical
  treatment, or authorize [order] or provide other available services
  necessary to remove conditions creating the threat to life or
  physical safety. The department must obtain an emergency order
  under this section not later than 4 p.m. on the first succeeding
  business day after the date on which protective services are
  provided. If the department does not obtain an emergency order, the
  department shall cease providing protective services and, if
  necessary, make arrangements for the immediate return of the person
  to the place from which the person was removed, to the person's
  place of residence in the state, or to another suitable place.
         SECTION 12.  The change made by this Act to Section 48.053,
  Human Resources Code, applies only to an offense committed on or
  after the effective date of this Act. An offense committed before
  the effective date of this Act is governed by the law in effect when
  the offense was committed, and the former law is continued in effect
  for that purpose. For the purposes of this section, an offense was
  committed before the effective date of this Act if any element of
  the offense occurred before that date.
         SECTION 13.  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 14.  This Act takes effect September 1, 2009.