By: Nelson, et al. S.B. No. 643

A BILL TO BE ENTITLED

AN ACT

relating to the protection and care of individuals with mental retardation who reside in a state developmental center or the ICF-MR component of the Rio Grande State Center.

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

SECTION 1. Subchapter A, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.014 to read as follows:

Art. 46B.014. COMMITMENT TO CERTAIN RESIDENTIAL CARE FACILITIES. Except as provided by Article 46B.073, a court may not commit an individual with mental retardation to a residential care facility operated by the Department of Aging and Disability Services unless the court finds that the individual meets the criteria for commitment to a residential care facility as provided by Section 593.052(a-1), Health and Safety Code.

SECTION 2. Section 261.404, Family Code, is amended by adding Subsection (b-1) to read as follows:

(b-1) If an investigation under this section reveals evidence of abuse, neglect, or exploitation of a resident or client of a state developmental center as defined by Section 531.002, Health and Safety Code, or the ICF-MR component of the Rio Grande State Center, and a caseworker of the department or a supervisor of a caseworker believes that the abuse, neglect, or exploitation is a criminal offense, the caseworker or supervisor shall immediately notify the Health and Human Services Commission's office of inspector general and promptly provide the Health and Human Services Commission's office of inspector general with a copy of the department's investigation report.

SECTION 3. Subchapter F, Chapter 411, Government Code, is amended by adding Section 411.1144 to read as follows:

Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS AT STATE DEVELOPMENTAL CENTERS. (a) The Department of State Health Services and the Department of Aging and Disability Services are entitled to obtain from the department criminal history record information maintained by the department that relates to a person:

(1) who is:

(A) an applicant for employment with the agency;

(B) an employee of the agency;

(C) a volunteer with the agency; or

(D) an applicant for a volunteer position with the agency; and

(2) who would be placed in direct contact with a resident or client of a state developmental center or the ICF-MR component of the Rio Grande State Center.

(b) Criminal history record information obtained by an agency under Subsection (a) may not be released or disclosed to any person except:

(1) on court order;

(2) with the consent of the person who is the subject of the criminal history record information;

(3) for purposes of an administrative hearing held by the agency concerning the person who is the subject of the criminal history record information; or

(4) as provided by Subsection (c).

(c) An agency is not prohibited from releasing criminal history record information obtained under Subsection (a) or (d) to the person who is the subject of the criminal history record information.

(d) Subject to Section 411.087, the Department of State Health Services and the Department of Aging and Disability Services are entitled to:

(1) obtain through the Federal Bureau of Investigation criminal history record information maintained or indexed by that bureau that pertains to a person described by Subsection (a); and

(2) obtain from any other criminal justice agency in this state criminal history record information maintained by that criminal justice agency that relates to a person described by Subsection (a).

(e) This section does not prohibit an agency from obtaining and using criminal history record information as provided by other law.

SECTION 4. Subchapter C, Chapter 531, Government Code, is amended by adding Section 531.1022 to read as follows:

Sec. 531.1022. ASSISTING CERTAIN INVESTIGATIONS BY LAW ENFORCEMENT. (a) The office of inspector general shall employ and commission peace officers for the sole purpose of assisting a state or local law enforcement agency in the investigation of an alleged criminal offense involving a resident or client of a state developmental center as defined by Section 531.002, Health and Safety Code, or the ICF-MR component of the Rio Grande State Center.

(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;

(9) state auditor;

(10) alleged victim and the alleged victim's legally authorized representative; and

(11) office of the independent ombudsman for state developmental centers.

(d) A final report regarding an investigation is subject to required disclosure under Chapter 552. All information and materials compiled by the office of inspector general in connection with an investigation are confidential, and not subject to disclosure under Chapter 552, and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for their release to anyone other than the office or its employees or agents involved in the investigation conducted by the office, except that this information may be disclosed to the office of the attorney general, the state auditor's office, and law enforcement agencies.

(e) The office of inspector general shall prepare an annual status report of its activities under this section. The annual report may not contain identifying information of an individual mentioned in the report. The annual status report must include information that is aggregated and disaggregated by individual state developmental center or the ICF-MR component of the Rio Grande State Center regarding:

(1) the number and type of alleged offenses investigated by the office;

(2) the number and type of alleged offenses involving an employee of a state developmental center or the ICF-MR component of the Rio Grande State Center;

(3) the relationship of an alleged victim to an alleged perpetrator;

(4) the number of investigations conducted that involve the suicide, death, or hospitalization of an alleged victim; and

(5) the number of completed investigations in which commission of the alleged offense was confirmed or unsubstantiated or in which the investigation was inconclusive, and a description of the reason that allegations were unsubstantiated or the investigation was inconclusive.

(f) The office of inspector general shall:

(1) submit the annual status report to the:

(A) executive commissioner;

(B) commissioner of the Department of Aging and Disability Services;

(C) commissioner of the Department of Family and Protective Services;

(D) Aging and Disability Services Council;

(E) Family and Protective Services Council;

(F) governor;

(G) lieutenant governor;

(H) speaker of the house of representatives;

(I) standing committees of the senate and house of representatives with primary jurisdiction over state developmental centers;

(J) state auditor; and

(K) comptroller; and

(2) publish the report on the Internet website of the office of inspector general.

(g) An annual status report submitted under this section is public information under Chapter 552.

SECTION 5. Subdivision (17), Section 531.002, 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 6. 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 7. Subsection (b), Section 532.001, Health and Safety Code, is amended to read as follows:

(b) The Department of Aging and Disability Services and the Department of State Health Services [department] also include [includes] community services operated by those departments [the department] and the following facilities, as appropriate:

(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 8. 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 9. Subchapter B, Chapter 551, Health and Safety Code, is amended by adding Section 551.0225 to read as follows:

Sec. 551.0225. POWERS AND DUTIES OF STATE DEVELOPMENTAL CENTER DIRECTOR. (a) The director of a state developmental center is the administrative head of the center.

(b) The director of a state developmental center has the custody of and responsibility to care for the buildings, grounds, furniture, and other property relating to the center.

(c) The director of a state developmental center shall:

(1) oversee the admission and discharge of residents and clients;

(2) keep a register of all residents and clients admitted to or discharged from the center;

(3) supervise repairs and improvements to the center;

(4) ensure that center money is spent judiciously and economically;

(5) keep an accurate and detailed account of all money received and spent, stating the source of the money and on whom and the purpose for which the money is spent; and

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

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

(1) establish policy to govern the state developmental center that the director considers will best promote the residents' interest and welfare;

(2) hire subordinate employees and set their salaries, in the absence of other law; and

(3) dismiss a subordinate employee.

SECTION 10. 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) "Client" means a person with mental retardation who receives ICF-MR services from a state developmental center or the ICF-MR component of the Rio Grande State Center.

(2) "Commission" means the Health and Human Services Commission.

(3) "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 or related laws.

(4) "Department" means the Department of Aging and Disability Services.

(5) "Developmental center employee" means an employee of a state developmental center or the ICF-MR component of the Rio Grande State Center.

(6) "Direct care employee" means a developmental center employee who provides direct delivery of services to a resident or client.

(7) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(8) "Independent ombudsman" means the individual who has been appointed to the office of independent ombudsman.

(9) "Office" means the office of independent ombudsman established under Subchapter C.

(10) "Resident" means a person with mental retardation who resides in a state developmental center or the ICF-MR component of the Rio Grande State Center.

(11) "State developmental center" has the meaning assigned by Section 531.002.

Sec. 555.002. STATE DEVELOPMENTAL CENTER FOR HIGH-RISK RESIDENTS. (a) The department shall establish a separate state developmental center for the care and supervision of residents who present a high risk of dangerous or violent behavior as provided by Subsections (b) and (c). The department shall designate an existing state developmental center for those high-risk residents.

(b) A resident is a high-risk resident if the person:

(1) 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 Subsection (c);

(2) 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 Subsection (c); or

(3) was committed to or transferred to a state developmental center and has at any time been committed for outpatient treatment and supervision as a sexually violent predator under Chapter 841.

(c) A resident may be considered a high-risk resident if the person:

(1) has intentionally inflicted or attempted to inflict substantial physical harm to another while committed to a state developmental center; or

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

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

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

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

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

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

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

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

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

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

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

(K) 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 subdivision.

(d) In establishing a state developmental center designated for high-risk residents, the department shall:

(1) transfer a high-risk resident already residing in a state developmental center to the designated state developmental center;

(2) place high-risk residents in separate homes at the designated state developmental center based on whether the high-risk resident is:

(A) an adult or a person younger than 18 years of age; or

(B) male or female;

(3) place all high-risk residents committed to or transferred to a state developmental center in the designated state developmental center; and

(4) provide training regarding the service delivery system for high-risk residents to direct care employees of the designated state developmental center.

(e) A resident who is transferred to the designated state developmental center is entitled to an administrative hearing regarding a transfer of the resident as provided by Section 594.014. In making a determination that a resident should be transferred to the state developmental center for high-risk residents in accordance with Subsection (c)(1), the director of a state developmental center shall document and collect evidence regarding the conduct engaged in by the resident that meets that criteria. The director shall provide the documentation and evidence collected under this section to the department, the independent ombudsman, and the resident or the resident's legally authorized representative before a hearing is held under Section 594.014 regarding whether the resident's proposed transfer is appropriate.

(f) The department shall ensure that the designated state developmental center complies with the requirements for ICF-MR certification under the Medicaid program as appropriate.

[Sections 555.003-555.020 reserved for expansion]

SUBCHAPTER B. POWERS AND DUTIES

Sec. 555.021. REQUIRED CRIMINAL HISTORY CHECKS FOR EMPLOYEES AND VOLUNTEERS. (a) The department and the Department of State Health Services shall perform a state and federal criminal history background check on a person:

(1) who is:

(A) an applicant for employment with the agency;

(B) an employee of the agency;

(C) a volunteer with the agency; or

(D) an applicant for a volunteer position with the agency; and

(2) who would be placed in direct contact with a resident or client at a state developmental center or the ICF-MR component of the Rio Grande State Center.

(b) The department and the Department of State Health Services shall require 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 shall adopt a policy regarding random testing and reasonable suspicion testing for the illegal use of drugs by an employee of a state developmental center.

(b) The director of a state developmental center shall enforce the policy adopted under Subsection (a) by performing necessary drug testing of employees of the state developmental center 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 may be considered a factor in determining whether there is reasonable suspicion of the use of a controlled substance.

Sec. 555.023. REPORTS OF ILLEGAL DRUG USE; POLICY. The executive commissioner shall adopt a policy requiring an employee of a state developmental center who knows or reasonably suspects that another employee of the state developmental center 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. DEVELOPMENTAL CENTER EMPLOYEE TRAINING. (a) Before a developmental center employee begins to perform the employee's duties without direct supervision, the department shall provide the employee with competency training and a course of instruction about the general duties of a developmental center employee. The department shall ensure the basic developmental center employee competency course focuses on:

(1) the uniqueness of the individuals the developmental center employee serves;

(2) techniques for improving quality of life for and promoting the health and safety of individuals with mental retardation; and

(3) the conduct expected of developmental center employees.

(b) The department shall ensure the training required by Subsection (a) provides instruction and information regarding the following topics:

(1) the general operation and layout of the state developmental center, including armed intruder lockdown procedures;

(2) an introduction to mental retardation;

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

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

(5) respecting personal choices made by residents and clients;

(6) the safe and proper use of restraints;

(7) recognizing and reporting:

(A) abuse, neglect, and exploitation of individuals with mental retardation;

(B) unusual incidents;

(C) reasonable suspicion of illegal drug use in the workplace;

(D) workplace violence; and

(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) the rights of developmental center employees.

(c) In addition to the training required by Subsection (a) and before a direct care employee begins to perform the direct care employee's duties without direct supervision, the department shall provide a direct care employee with training and instructional information regarding implementation of the interdisciplinary treatment program for each client for whom the direct care employee will provide direct care, which shall include the following topics:

(1) prevention and management of aggressive or high-risk behavior;

(2) observing and reporting changes in behavior, appearance, or health of residents and clients;

(3) positive behavior support;

(4) emergency response;

(5) person-directed plans;

(6) seizure safety;

(7) techniques for:

(A) lifting;

(B) positioning; and

(C) movement and mobility;

(8) working with aging residents and clients;

(9) assisting residents and clients:

(A) who have a visual impairment;

(B) who have a hearing deficit; or

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

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

(11) assisting residents and clients with personal hygiene;

(12) recognizing appropriate food textures;

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

(14) physical and nutritional management plans; and

(15) home and community-based services (HCS), including the principles of community inclusion and participation and the community living options information process.

Sec. 555.025. VIDEO SURVEILLANCE. (a) In this section, "private space" means a place in a state developmental center or the ICF-MR component of the Rio Grande State Center in which a resident or client has a reasonable expectation of privacy, including:

(1) a bedroom;

(2) a bathroom;

(3) a place in which a resident or client receives medical or nursing services;

(4) a place in which a resident or client meets privately with visitors; or

(5) a place in which a resident or client privately makes phone calls.

(b) The department shall install and operate video surveillance equipment in a state developmental center and the ICF-MR component of the Rio Grande State Center for the purpose of detecting and preventing the exploitation or abuse of residents and clients.

(c) The department may not install or operate video surveillance equipment in a private space or in a location in which video surveillance equipment can capture images within a private space.

(d) The department shall ensure the use of video surveillance equipment under this section complies with federal requirements for ICF-MR certification.

Sec. 555.026. MORTALITY REVIEW. (a) The executive commissioner shall establish an independent mortality review system to review the death of a person who, at the time of the person's death, was a resident or client.

(b) A review under this section shall be conducted in addition to any review conducted by the state developmental center or the Rio Grande State Center. To ensure consistency across mortality review systems, a review under this section must collect information consistent with the information required to be collected by any other independent mortality review process established specifically for persons with mental retardation.

(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, to the extent allowed by federal law, submit:

(1) to the department, the office of independent ombudsman, this state's federally authorized protection and advocacy system for individuals with developmental disabilities, and the commission's office of inspector general a report of the findings of the mortality review; and

(2) semiannually to the lieutenant governor, the speaker of the house of representatives, and the standing committees of the senate and house of representatives with primary jurisdiction over state developmental centers a report that contains:

(A) aggregate information regarding the deaths for which the patient safety organization performed an independent mortality review;

(B) trends in the causes of death identified by the patient safety organization; and

(C) any suggestions for system-wide improvements to address conditions that contributed to deaths reviewed by the patient safety organization.

(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) report to the Department of Family and Protective Services regarding a communication that may involve the abuse, neglect, or exploitation of a resident or client;

(2) report to the regulatory services division of the department regarding 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 conducted by the ombudsman 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 employee of a state developmental center 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 employees of state developmental centers 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 semiannual on-site audits, including meetings with residents and employees of the state developmental center, 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) conduct biennial on-site audits at each state developmental center and the ICF-MR component of the Rio Grande State Center of:

(A) the ratio of direct care employees to residents;

(B) the provision and adequacy of training to:

(i) developmental center employees; and

(ii) direct care employees; and

(C) if the state developmental center serves high-risk residents, the provision of specialized training to direct care employees;

(8) 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;

(9) 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;

(10) 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;

(11) 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

(12) 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.

Sec. 555.060. RETALIATION PROHIBITED. The department or a state developmental center may not retaliate against a department employee or employee of a state developmental center 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 home in which a resident lives or a client receives services; and

(2) a resident, a client, the authorized representative of a resident, and an employee of a state developmental center have confidential access to a telephone for the purpose of calling the toll-free number.

SECTION 11. 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 operated by the Department of Aging and Disability Services must include a statement demonstrating that the proposed resident meets the requirements for commitment to a residential care facility under Section 593.052(a-1).

SECTION 12. 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 operated by a community center 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 operated by the community center provides habilitative services, care, training, and treatment appropriate to the proposed resident's needs.

(a-1) A proposed resident may not be committed to a residential care facility operated by the Department of Aging and Disability Services 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 operated by the Department of Aging and Disability Services 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 operated by a community center is appropriate, the court shall commit the proposed resident for care, treatment, and training to a community center [or the department] when space is available in a residential care facility operated by a community 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 operated by the Department of Aging and Disability Services is appropriate, the court shall commit the proposed resident for care, treatment, and training to the department when space is available in a residential care facility operated by the department.

SECTION 13. Section 48.252, Human Resources Code, is amended by adding Subsection (d) to read as follows:

(d) If an investigation under this section reveals evidence of the abuse, neglect, or exploitation of a resident or client of a state developmental center as defined by Section 531.002, Health and Safety Code, or the ICF-MR component of the Rio Grande State Center, and a caseworker of the department or a supervisor of a caseworker believes that the abuse, neglect, or exploitation is a criminal offense, the caseworker or supervisor shall immediately notify the Health and Human Services Commission's office of inspector general and promptly provide the Health and Human Services Commission's office of inspector general with a copy of the department's investigation report.

SECTION 14. (a) Not later than December 1, 2009, the Health and Human Services Commission's office of inspector general shall begin employing peace officers as required by Section 531.1022, Government Code, as added by this Act.

(b) Not later than September 1, 2014, the Department of Aging and Disability Services shall designate a state developmental center for high-risk residents as required by Section 555.002, Health and Safety Code, as added by this Act.

(c) Not later than January 1, 2010, the Department of Aging and Disability Services shall develop the training required by Section 555.024, Health and Safety Code, as added by this Act.

(d) The Department of Aging and Disability Services shall ensure that all developmental 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 contract for mortality review services as required by Section 555.026, Health and Safety Code, as added by this Act.

(f) Not later than December 1, 2009, the governor shall appoint the independent ombudsman as required by Section 555.053, Health and Safety Code, as added by this Act.

SECTION 15. 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.

SECTION 16. (a) The change in law made by Subsection (e), Section 551.022, 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 employee of a state developmental center hired on or after the effective date of this Act.

(b) The dismissal of an employee of a state developmental center hired before the effective date of this Act is governed by the law in effect when the employee was hired, and the former law is continued in effect for that purpose.

SECTION 17. (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 18. 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.