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A BILL TO BE ENTITLED
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AN ACT
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relating to the abuse, neglect, and exploitation of residents of |
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certain facilities; creating an offense; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle B, Title 4, Health and Safety Code, is |
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amended by adding Chapter 260 to read as follows: |
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CHAPTER 260. REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF |
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RESIDENTS OF CERTAIN FACILITIES |
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Sec. 260.001. DEFINITIONS. In this chapter: |
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(1) "Abuse" means: |
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(A) the negligent or wilful infliction of injury, |
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unreasonable confinement, intimidation, or cruel punishment with |
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resulting physical or emotional harm or pain to a resident by the |
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resident's caretaker, family member, or other individual who has an |
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ongoing relationship with the resident; or |
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(B) sexual abuse of a resident, including any |
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involuntary or nonconsensual sexual conduct that would constitute |
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an offense under Section 21.08, Penal Code (indecent exposure), or |
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Chapter 22, Penal Code (assaultive offenses), committed by the |
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resident's caretaker, family member, or other individual who has an |
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ongoing relationship with the resident. |
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(2) "Department" means the Department of Aging and |
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Disability Services. |
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(3) "Executive commissioner" means the executive |
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commissioner of the Health and Human Services Commission. |
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(4) "Exploitation" means the illegal or improper act |
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or process of a caretaker, family member, or other individual who |
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has an ongoing relationship with the resident using the resources |
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of a resident for monetary or personal benefit, profit, or gain |
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without the informed consent of the resident. |
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(5) "Facility" means: |
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(A) an institution as that term is defined by |
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Section 242.002; and |
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(B) an assisted living facility as that term is |
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defined by Section 247.002. |
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(6) "Neglect" means the failure to provide for one's |
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self the goods or services, including medical services, which are |
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necessary to avoid physical or emotional harm or pain or the failure |
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of a caretaker to provide such goods or services. |
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(7) "Resident" means an individual, including a |
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patient, who resides in a facility. |
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Sec. 260.002. REPORTING OF ABUSE, NEGLECT, AND |
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EXPLOITATION. (a) A person, including an owner or employee of a |
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facility, who has cause to believe that the physical or mental |
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health or welfare of a resident has been or may be adversely |
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affected by abuse, neglect, or exploitation caused by another |
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person shall report the abuse, neglect, or exploitation in |
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accordance with this chapter. |
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(b) Each facility shall require each employee of the |
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facility, as a condition of employment with the facility, to sign a |
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statement that the employee realizes that the employee may be |
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criminally liable for failure to report those abuses. |
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(c) A person shall make an oral report immediately on |
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learning of the abuse, neglect, or exploitation and shall make a |
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written report to the department not later than the fifth day after |
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the oral report is made. |
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Sec. 260.003. CONTENTS OF REPORT. (a) A report of abuse, |
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neglect, or exploitation is nonaccusatory and reflects the |
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reporting person's belief that a resident has been or will be |
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abused, neglected, or exploited or has died of abuse or neglect. |
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(b) The report must contain: |
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(1) the name and address of the resident; |
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(2) the name and address of the person responsible for |
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the care of the resident, if available; and |
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(3) other relevant information. |
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(c) Except for an anonymous report under Section 260.004, a |
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report of abuse, neglect, or exploitation under Section 260.002 |
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should also include the address or phone number of the person making |
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the report so that an investigator can contact the person for any |
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necessary additional information. The phone number, address, and |
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name of the person making the report must be deleted from any copy |
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of any type of report that is released to the public, to the |
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facility, or to an owner or agent of the facility. |
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Sec. 260.004. ANONYMOUS REPORTS OF ABUSE, NEGLECT, OR |
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EXPLOITATION. (a) An anonymous report of abuse, neglect, or |
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exploitation, although not encouraged, shall be received and acted |
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on in the same manner as an acknowledged report. |
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(b) An anonymous report about a specific individual that |
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accuses the individual of abuse, neglect, or exploitation need not |
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be investigated. |
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Sec. 260.005. TELEPHONE HOTLINE; PROCESSING OF REPORTS. |
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(a) The department shall establish and operate a telephone |
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hotline, at each of the department's regional offices, to receive |
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reports of abuse, neglect, or exploitation. |
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(b) Each of the department's regional offices shall |
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continuously operate the telephone hotline, with a live operator to |
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receive reports and to dispatch investigators. |
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(c) A report of abuse, neglect, or exploitation shall be |
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made to the department's telephone hotline for the region where the |
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abuse, neglect, or exploitation occurred or may occur or to a local |
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or state law enforcement agency. A report made relating to abuse, |
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neglect, or exploitation or another complaint described by Section |
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260.007(c)(1) shall be made to the department's telephone hotline |
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for the region where the abuse, neglect, or exploitation occurred |
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or may occur and to the law enforcement agency described by Section |
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260.017(a). |
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(d) Except as provided by Section 260.017, a local or state |
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law enforcement agency that receives a report of abuse, neglect, or |
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exploitation shall refer the report to the department. |
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(e) The executive commissioner by rule shall establish the |
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qualifications necessary for a person to work as a live operator. |
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Sec. 260.006. NOTICE. (a) Each facility shall prominently |
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and conspicuously post a sign for display in a public area of the |
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facility that is readily available to residents, employees, and |
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visitors. |
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(b) The sign must include the statement: CASES OF SUSPECTED |
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ABUSE, NEGLECT, OR EXPLOITATION SHALL BE REPORTED TO THE TEXAS |
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DEPARTMENT OF AGING AND DISABILITY SERVICES BY CALLING (insert |
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regional telephone hotline number). |
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(c) A facility shall provide the regional telephone hotline |
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number to an immediate family member of a resident of the facility |
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upon the resident's admission into the facility. |
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Sec. 260.007. INVESTIGATION AND REPORT OF DEPARTMENT. (a) |
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The department shall make a thorough investigation after receiving |
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an oral or written report of abuse, neglect, or exploitation under |
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Section 260.002 or another complaint alleging abuse, neglect, or |
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exploitation. |
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(b) The primary purpose of the investigation is the |
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protection of the resident. |
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(c) The department shall begin the investigation: |
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(1) within 24 hours after receipt of the report or |
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other allegation, if the report of abuse, neglect, exploitation, or |
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other complaint alleges that: |
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(A) a resident's health or safety is in imminent |
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danger; |
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(B) a resident has recently died because of |
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conduct alleged in the report of abuse, neglect, exploitation, or |
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other complaint; |
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(C) a resident has been hospitalized or been |
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treated in an emergency room because of conduct alleged in the |
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report of abuse, neglect, exploitation, or other complaint; |
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(D) a resident has been a victim of any act or |
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attempted act described by Section 21.02, 21.11, 22.011, or 22.021, |
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Penal Code; or |
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(E) a resident has suffered bodily injury, as |
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that term is defined by Section 1.07, Penal Code, because of conduct |
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alleged in the report of abuse, neglect, exploitation, or other |
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complaint; or |
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(2) before the end of the next working day after the |
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date of receipt of the report of abuse, neglect, exploitation, or |
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other complaint, if the report or complaint alleges the existence |
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of circumstances that could result in abuse, neglect, or |
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exploitation and that could place a resident's health or safety in |
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imminent danger. |
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(d) The department shall adopt rules governing the conduct |
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of investigations, including procedures to ensure that the |
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complainant and the resident, the resident's next of kin, and any |
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person designated to receive information concerning the resident |
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receive periodic information regarding the investigation. |
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(e) In investigating the report of abuse, neglect, |
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exploitation, or other complaint, the investigator for the |
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department shall: |
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(1) make an unannounced visit to the facility to |
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determine the nature and cause of the alleged abuse, neglect, or |
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exploitation of the resident; |
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(2) interview each available witness, including the |
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resident who suffered the alleged abuse, neglect, or exploitation |
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if the resident is able to communicate or another resident or other |
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witness identified by any source as having personal knowledge |
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relevant to the report of abuse, neglect, exploitation, or other |
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complaint; |
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(3) personally inspect any physical circumstance that |
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is relevant and material to the report of abuse, neglect, |
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exploitation, or other complaint and that may be objectively |
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observed; |
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(4) make a photographic record of any injury to a |
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resident, subject to Subsection (n); and |
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(5) write an investigation report that includes: |
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(A) the investigator's personal observations; |
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(B) a review of relevant documents and records; |
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(C) a summary of each witness statement, |
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including the statement of the resident that suffered the alleged |
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abuse, neglect, or exploitation and any other resident interviewed |
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in the investigation; and |
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(D) a statement of the factual basis for the |
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findings for each incident or problem alleged in the report or other |
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allegation. |
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(f) An investigator for an investigating agency shall |
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conduct an interview under Subsection (e)(2) in private unless the |
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witness expressly requests that the interview not be private. |
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(g) Not later than the 30th day after the date the |
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investigation is complete, the investigator shall prepare the |
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written report required by Subsection (e). The department shall |
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make the investigation report available to the public on request |
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after the date the department's letter of determination is |
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complete. The department shall delete from any copy made available |
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to the public: |
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(1) the name of: |
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(A) any resident, unless the department receives |
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written authorization from a resident or the resident's legal |
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representative requesting the resident's name be left in the |
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report; |
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(B) the person making the report of abuse, |
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neglect, exploitation, or other complaint; and |
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(C) an individual interviewed in the |
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investigation; and |
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(2) photographs of any injury to the resident. |
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(h) In the investigation, the department shall determine: |
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(1) the nature, extent, and cause of the abuse, |
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neglect, or exploitation; |
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(2) the identity of the person responsible for the |
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abuse, neglect, or exploitation; |
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(3) the names and conditions of the other residents; |
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(4) an evaluation of the persons responsible for the |
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care of the residents; |
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(5) the adequacy of the facility environment; and |
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(6) any other information required by the department. |
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(i) If the department attempts to carry out an on-site |
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investigation and it is shown that admission to the facility or any |
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place where the resident is located cannot be obtained, a probate or |
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county court shall order the person responsible for the care of the |
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resident or the person in charge of a place where the resident is |
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located to allow entrance for the interview and investigation. |
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(j) Before the completion of the investigation, the |
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department shall file a petition for temporary care and protection |
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of the resident if the department determines that immediate removal |
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is necessary to protect the resident from further abuse, neglect, |
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or exploitation. |
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(k) The department shall make a complete final written |
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report of the investigation and submit the report and its |
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recommendations to the district attorney and, if a law enforcement |
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agency has not investigated the report of abuse, neglect, |
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exploitation, or other complaint, to the appropriate law |
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enforcement agency. |
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(l) Within 24 hours after receipt of a report of abuse, |
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neglect, exploitation, or other complaint described by Subsection |
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(c)(1), the department shall report the report or complaint to the |
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law enforcement agency described by Section 260.017(a). The |
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department shall cooperate with that law enforcement agency in the |
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investigation of the report or complaint as described by Section |
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260.017. |
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(m) The inability or unwillingness of a local law |
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enforcement agency to conduct a joint investigation under Section |
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260.017 does not constitute grounds to prevent or prohibit the |
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department from performing its duties under this chapter. The |
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department shall document any instance in which a law enforcement |
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agency is unable or unwilling to conduct a joint investigation |
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under Section 260.017. |
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(n) If the department determines that, before a |
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photographic record of an injury to a resident may be made under |
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Subsection (e), consent is required under state or federal law, the |
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investigator: |
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(1) shall seek to obtain any required consent; and |
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(2) may not make the photographic record unless the |
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consent is obtained. |
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Sec. 260.008. CONFIDENTIALITY. A report, record, or |
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working paper used or developed in an investigation made under this |
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chapter and the name, address, and phone number of any person making |
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a report under this chapter are confidential and may be disclosed |
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only for purposes consistent with rules adopted by the executive |
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commissioner. The report, record, or working paper and the name, |
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address, and phone number of the person making the report shall be |
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disclosed to a law enforcement agency as necessary to permit the law |
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enforcement agency to investigate a report of abuse, neglect, |
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exploitation, or other complaint in accordance with Section |
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260.017. |
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Sec. 260.009. IMMUNITY. (a) A person who reports as |
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provided by this chapter is immune from civil or criminal liability |
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that, in the absence of the immunity, might result from making the |
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report. |
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(b) The immunity provided by this section extends to |
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participation in any judicial proceeding that results from the |
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report. |
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(c) This section does not apply to a person who reports in |
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bad faith or with malice. |
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Sec. 260.010. PRIVILEGED COMMUNICATIONS. In a proceeding |
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regarding the abuse, neglect, or exploitation of a resident or the |
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cause of any abuse, neglect, or exploitation, evidence may not be |
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excluded on the ground of privileged communication except in the |
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case of a communication between an attorney and client. |
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Sec. 260.011. CENTRAL REGISTRY. (a) The department shall |
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maintain in the city of Austin a central registry of reported cases |
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of resident abuse, neglect, or exploitation. |
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(b) The executive commissioner may adopt rules necessary to |
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carry out this section. |
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(c) The rules shall provide for cooperation with hospitals |
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and clinics in the exchange of reports of resident abuse, neglect, |
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or exploitation. |
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Sec. 260.012. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A |
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person commits an offense if the person has cause to believe that a |
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resident's physical or mental health or welfare has been or may be |
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further adversely affected by abuse, neglect, or exploitation and |
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knowingly fails to report in accordance with Section 260.002. |
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(b) An offense under this section is a Class A misdemeanor. |
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Sec. 260.013. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING; |
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CRIMINAL PENALTY. (a) A person commits an offense if the person |
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reports under this chapter in bad faith, maliciously, or |
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recklessly. |
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(b) An offense under this section is a Class A misdemeanor. |
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(c) The criminal penalty provided by this section is in |
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addition to any civil penalties for which the person may be liable. |
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Sec. 260.014. RETALIATION AGAINST EMPLOYEES PROHIBITED. |
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(a) In this section, "employee" means a person who is an employee |
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of a facility or any other person who provides services for a |
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facility for compensation, including a contract laborer for the |
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facility. |
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(b) An employee has a cause of action against a facility, or |
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the owner or another employee of the facility, that suspends or |
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terminates the employment of the person or otherwise disciplines or |
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discriminates or retaliates against the employee for reporting to |
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the employee's supervisor, an administrator of the facility, a |
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state regulatory agency, or a law enforcement agency a violation of |
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law, including a violation of Chapter 242 or 247 or a rule adopted |
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under Chapter 242 or 247, or for initiating or cooperating in any |
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investigation or proceeding of a governmental entity relating to |
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care, services, or conditions at the facility. |
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(c) The petitioner may recover: |
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(1) the greater of $1,000 or actual damages, including |
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damages for mental anguish even if an injury other than mental |
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anguish is not shown, and damages for lost wages if the petitioner's |
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employment was suspended or terminated; |
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(2) exemplary damages; |
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(3) court costs; and |
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(4) reasonable attorney's fees. |
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(d) In addition to the amounts that may be recovered under |
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Subsection (c), a person whose employment is suspended or |
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terminated is entitled to appropriate injunctive relief, |
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including, if applicable: |
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(1) reinstatement in the person's former position; and |
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(2) reinstatement of lost fringe benefits or seniority |
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rights. |
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(e) The petitioner, not later than the 90th day after the |
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date on which the person's employment is suspended or terminated, |
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must bring suit or notify the Texas Workforce Commission of the |
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petitioner's intent to sue under this section. A petitioner who |
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notifies the Texas Workforce Commission under this subsection must |
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bring suit not later than the 90th day after the date of the |
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delivery of the notice to the commission. On receipt of the notice, |
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the commission shall notify the facility of the petitioner's intent |
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to bring suit under this section. |
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(f) The petitioner has the burden of proof, except that |
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there is a rebuttable presumption that the person's employment was |
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suspended or terminated for reporting abuse, neglect, or |
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exploitation if the person is suspended or terminated within 60 |
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days after the date on which the person reported in good faith. |
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(g) A suit under this section may be brought in the district |
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court of the county in which: |
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(1) the plaintiff resides; |
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(2) the plaintiff was employed by the defendant; or |
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(3) the defendant conducts business. |
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(h) Each facility shall require each employee of the |
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facility, as a condition of employment with the facility, to sign a |
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statement that the employee understands the employee's rights under |
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this section. The statement must be part of the statement required |
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under Section 260.002. If a facility does not require an employee |
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to read and sign the statement, the periods under Subsection (e) do |
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not apply, and the petitioner must bring suit not later than the |
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second anniversary of the date on which the person's employment is |
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suspended or terminated. |
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Sec. 260.015. RETALIATION AGAINST VOLUNTEERS, RESIDENTS, |
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OR FAMILY MEMBERS OR GUARDIANS OF RESIDENTS. (a) A facility may |
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not retaliate or discriminate against a volunteer, resident, or |
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family member or guardian of a resident because the volunteer, |
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resident, resident's family member or guardian, or any other |
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person: |
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(1) makes a complaint or files a grievance concerning |
|
the facility; |
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(2) reports a violation of law, including a violation |
|
of Chapter 242 or 247 or a rule adopted under Chapter 242 or 247; or |
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(3) initiates or cooperates in an investigation or |
|
proceeding of a governmental entity relating to care, services, or |
|
conditions at the facility. |
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(b) A volunteer, resident, or family member or guardian of a |
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resident who is retaliated or discriminated against in violation of |
|
Subsection (a) is entitled to sue for: |
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(1) injunctive relief; |
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(2) the greater of $1,000 or actual damages, including |
|
damages for mental anguish even if an injury other than mental |
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anguish is not shown; |
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(3) exemplary damages; |
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(4) court costs; and |
|
(5) reasonable attorney's fees. |
|
(c) A volunteer, resident, or family member or guardian of a |
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resident who seeks relief under this section must report the |
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alleged violation not later than the 180th day after the date on |
|
which the alleged violation of this section occurred or was |
|
discovered by the volunteer, resident, or family member or guardian |
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of the resident through reasonable diligence. |
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(d) A suit under this section may be brought in the district |
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court of the county in which the facility is located or in a |
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district court of Travis County. |
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Sec. 260.016. REPORTS RELATING TO RESIDENT DEATHS. (a) A |
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facility shall submit a report to the department concerning deaths |
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of residents of the facility. The report must be submitted within |
|
10 working days after the last day of each month in which a resident |
|
of the facility dies. The report must also include the death of a |
|
resident occurring within 24 hours after the resident is |
|
transferred from the facility to a hospital. |
|
(b) The facility must make the report on a form prescribed |
|
by the department. The report must contain the name and social |
|
security number of the deceased. |
|
(c) The department shall correlate reports under this |
|
section with death certificate information to develop data relating |
|
to the: |
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(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) Except as provided by Subsection (e), a record under |
|
this section is confidential and not subject to the provisions of |
|
Chapter 552, Government Code. |
|
(e) The department shall develop statistical information on |
|
official causes of death to determine patterns and trends of |
|
incidents of death among residents and in specific facilities. |
|
Information developed under this subsection is public. |
|
(f) A licensed facility shall make available historical |
|
statistics on all required information on request of an applicant |
|
or applicant's representative. |
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Sec. 260.017. DUTIES OF LAW ENFORCEMENT; JOINT |
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INVESTIGATION. (a) The department shall investigate a report of |
|
abuse, neglect, exploitation, or other complaint described by |
|
Section 260.007(c)(1) jointly with: |
|
(1) the municipal law enforcement agency, if the |
|
facility is located within the territorial boundaries of a |
|
municipality; or |
|
(2) the sheriff's department of the county in which the |
|
facility is located, if the facility is not located within the |
|
territorial boundaries of a municipality. |
|
(b) The law enforcement agency described by Subsection (a) |
|
shall acknowledge the report of abuse, neglect, exploitation, or |
|
other complaint and begin the joint investigation required by this |
|
section within 24 hours after receipt of the report or complaint. |
|
The law enforcement agency shall cooperate with the department and |
|
report to the department the results of the investigation. |
|
(c) The requirement that the law enforcement agency and the |
|
department conduct a joint investigation under this section does |
|
not require that a representative of each agency be physically |
|
present during all phases of the investigation or that each agency |
|
participate equally in each activity conducted in the course of the |
|
investigation. |
|
SECTION 2. Chapter 2, Code of Criminal Procedure, is |
|
amended by adding Article 2.271 to read as follows: |
|
Art. 2.271. INVESTIGATION OF CERTAIN REPORTS ALLEGING |
|
ABUSE, NEGLECT, OR EXPLOITATION. Notwithstanding Article 2.27, on |
|
receipt of a report of abuse, neglect, exploitation, or other |
|
complaint of a resident of a nursing home, convalescent home, or |
|
other related institution or an assisted living facility, under |
|
Section 260.007(c)(1), Health and Safety Code, the appropriate |
|
local law enforcement agency shall investigate the report as |
|
required by Section 260.017, Health and Safety Code. |
|
SECTION 3. Subchapter A, Chapter 242, Health and Safety |
|
Code, is amended by adding Section 242.018 to read as follows: |
|
Sec. 242.018. COMPLIANCE WITH CHAPTER 260. (a) An |
|
institution shall comply with Chapter 260 and the rules adopted |
|
under that chapter. |
|
(b) A person, including an owner or employee of an |
|
institution, shall comply with Chapter 260 and the rules adopted |
|
under that chapter. |
|
SECTION 4. Section 242.042(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) Each institution shall prominently and conspicuously |
|
post for display in a public area of the institution that is readily |
|
available to residents, employees, and visitors: |
|
(1) the license issued under this chapter; |
|
(2) a sign prescribed by the department that specifies |
|
complaint procedures established under this chapter or rules |
|
adopted under this chapter and that specifies how complaints may be |
|
registered with the department; |
|
(3) a notice in a form prescribed by the department |
|
stating that licensing inspection reports and other related reports |
|
which show deficiencies cited by the department are available at |
|
the institution for public inspection and providing the |
|
department's toll-free telephone number that may be used to obtain |
|
information concerning the institution; |
|
(4) a concise summary of the most recent inspection |
|
report relating to the institution; |
|
(5) notice that the department can provide summary |
|
reports relating to the quality of care, recent investigations, |
|
litigation, and other aspects of the operation of the institution; |
|
(6) notice that the Texas Board of Nursing Facility |
|
Administrators can provide information about the nursing facility |
|
administrator; |
|
(7) any notice or written statement required to be |
|
posted under Section 242.072(c); |
|
(8) notice that informational materials relating to |
|
the compliance history of the institution are available for |
|
inspection at a location in the institution specified by the sign; |
|
[and] |
|
(9) notice that employees, other staff, residents, |
|
volunteers, and family members and guardians of residents are |
|
protected from discrimination or retaliation as provided by |
|
Sections 260.014 and 260.015; and |
|
(10) a sign required to be posted under Section |
|
260.006(a) [242.133 and 242.1335]. |
|
SECTION 5. Section 242.0665(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) Subsection (a) does not apply: |
|
(1) to a violation that the department determines: |
|
(A) results in serious harm to or death of a |
|
resident; |
|
(B) constitutes a serious threat to the health or |
|
safety of a resident; or |
|
(C) substantially limits the institution's |
|
capacity to provide care; |
|
(2) to a violation described by Sections |
|
242.066(a)(2)-(7); |
|
(3) to a violation of Section 260.014 [242.133] or |
|
260.015 [242.1335]; or |
|
(4) to a violation of a right of a resident adopted |
|
under Subchapter L. |
|
SECTION 6. Sections 242.848(a) and (b), Health and Safety |
|
Code, are amended to read as follows: |
|
(a) For purposes of the duty to report abuse or neglect |
|
under Section 260.002 [242.122] and the criminal penalty for the |
|
failure to report abuse or neglect under Section 260.012 [242.131], |
|
a person who is conducting electronic monitoring on behalf of a |
|
resident under this subchapter is considered to have viewed or |
|
listened to a tape or recording made by the electronic monitoring |
|
device on or before the 14th day after the date the tape or |
|
recording is made. |
|
(b) If a resident who has capacity to determine that the |
|
resident has been abused or neglected and who is conducting |
|
electronic monitoring under this subchapter gives a tape or |
|
recording made by the electronic monitoring device to a person and |
|
directs the person to view or listen to the tape or recording to |
|
determine whether abuse or neglect has occurred, the person to whom |
|
the resident gives the tape or recording is considered to have |
|
viewed or listened to the tape or recording on or before the seventh |
|
day after the date the person receives the tape or recording for |
|
purposes of the duty to report abuse or neglect under Section |
|
260.002 [242.122] and of the criminal penalty for the failure to |
|
report abuse or neglect under Section 260.012 [242.131]. |
|
SECTION 7. Subchapter A, Chapter 247, Health and Safety |
|
Code, is amended by adding Section 247.007 to read as follows: |
|
Sec. 247.007. COMPLIANCE WITH CHAPTER 260. (a) An assisted |
|
living facility shall comply with Chapter 260 and the rules adopted |
|
under that chapter. |
|
(b) A person, including an owner or employee of an assisted |
|
living facility, shall comply with Chapter 260 and the rules |
|
adopted under that chapter. |
|
SECTION 8. Section 247.043(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) The department shall conduct an investigation in |
|
accordance with Section 260.007 after receiving a report [a
|
|
preliminary investigation of each allegation] of abuse, |
|
exploitation, or neglect of a resident of an assisted living |
|
facility [to determine if there is evidence to corroborate the
|
|
allegation. If the department determines that there is evidence to
|
|
corroborate the allegation, the department shall conduct a thorough
|
|
investigation of the allegation]. |
|
SECTION 9. Section 247.0452(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) Subsection (a) does not apply: |
|
(1) to a violation that the department determines |
|
results in serious harm to or death of a resident; |
|
(2) to a violation described by Sections |
|
247.0451(a)(2)-(7) or a violation of Section 260.014 or 260.015; |
|
(3) to a second or subsequent violation of: |
|
(A) a right of the same resident under Section |
|
247.064; or |
|
(B) the same right of all residents under Section |
|
247.064; or |
|
(4) to a violation described by Section 247.066, which |
|
contains its own right to correct provisions. |
|
SECTION 10. Section 48.003, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.003. INVESTIGATIONS IN NURSING HOMES, ASSISTED |
|
LIVING FACILITIES, AND SIMILAR FACILITIES. (a) This chapter does |
|
not apply if the alleged or suspected abuse, neglect, or |
|
exploitation occurs in a facility licensed under Chapter 242 or |
|
247, Health and Safety Code. |
|
(b) Alleged or suspected abuse, neglect, or exploitation |
|
that occurs in a facility licensed under Chapter 242 or 247, Health |
|
and Safety Code, is governed by Chapter 260 [Subchapter B, Chapter
|
|
242], Health and Safety Code. |
|
SECTION 11. Subchapter E, Chapter 242, Health and Safety |
|
Code, is repealed. |
|
SECTION 12. (a) The repeal by this Act of Section 242.131, |
|
Health and Safety Code, does not apply to an offense committed under |
|
that section before the effective date of this Act. An offense |
|
committed before the effective date of this Act is governed by that |
|
section as it existed on the date the offense was committed, and the |
|
former law is continued in effect for that purpose. For purposes of |
|
this subsection, an offense was committed before the effective date |
|
of this Act if any element of the offense occurred before that date. |
|
(b) The repeal by this Act of Sections 242.133 and 242.1335, |
|
Health and Safety Code, does not apply to a cause of action that |
|
accrues before the effective date of this Act. A cause of action |
|
that accrues before the effective date of this Act is governed by |
|
Section 242.133 or 242.1335, Health and Safety Code, as applicable, |
|
as the section existed at the time the cause of action accrued, and |
|
the former law is continued in effect for that purpose. |
|
(c) The change in law made by this Act by the repeal of |
|
Subchapter E, Chapter 242, Health and Safety Code, does not apply to |
|
a disciplinary action under Subchapter C, Chapter 242, Health and |
|
Safety Code, for conduct that occurred before the effective date of |
|
this Act. Conduct that occurs before the effective date of this Act |
|
is governed by the law as it existed on the date the conduct |
|
occurred, and the former law is continued in effect for that |
|
purpose. |
|
SECTION 13. (a) The Department of Aging and Disability |
|
Services shall implement Chapter 260, Health and Safety Code, as |
|
added by this Act, using only existing resources and personnel. |
|
(b) The Department of Aging and Disability Services shall |
|
ensure that the services provided on the effective date of this Act |
|
are at least as comprehensive as the services provided on the day |
|
before the effective date of this Act. |
|
SECTION 14. 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, 2011. |