84R10634 GCB-F
 
  By: Zaffirini S.B. No. 1880
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the authority of the Department of Family and
  Protective Services to investigate abuse, neglect, or exploitation
  of individuals receiving services from certain providers.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 48.002(a), Human Resources Code, is
  amended by adding Subdivisions (11) and (12) to read as follows:
               (11)  "Executive commissioner" means the executive
  commissioner of the Health and Human Services Commission.
               (12)  "Home and community-based services" has the
  meaning assigned by Section 48.251.
         SECTION 2.  Section 48.002(b), Human Resources Code, is
  amended to read as follows:
         (b)  The definitions of "abuse," "neglect," and
  "exploitation" adopted by the executive commissioner [department]
  as prescribed by Section 48.251(b) [48.251] apply to an
  investigation of abuse, neglect, or exploitation conducted under
  Subchapter [in a facility subject to Subchapters] F [and H].
         SECTION 3.  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)  Except as provided
  by Subsection (c), this [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 260A, Health and Safety
  Code, except as otherwise provided by Subsection (c).
         (c)  Subchapter F applies to an investigation of alleged or
  suspected abuse, neglect, or exploitation in which a provider of
  home and community-based services is or may be alleged to have
  committed the abuse, neglect, or exploitation, regardless of
  whether the facility in which those services were provided is
  licensed under Chapter 242 or 247, Health and Safety Code.
         SECTION 4.  Sections 48.051(a) and (b), Human Resources
  Code, are amended to read as follows:
         (a)  Except as prescribed by Subsection (b), a person having
  cause to believe that an elderly [or disabled] person, a person with
  a disability, or an individual receiving services from a provider
  as described by Subchapter F is in the state of abuse, neglect, or
  exploitation[, including a disabled person receiving services as
  described by Section 48.252,] shall report the information required
  by Subsection (d) immediately to the department.
         (b)  If a person has cause to believe that an elderly [or
  disabled] person or a person with a disability, other than an
  individual [a disabled person] receiving services from a provider
  as described by Subchapter F [Section 48.252], has been abused,
  neglected, or exploited in a facility operated, licensed,
  certified, or registered by a state agency, the person shall report
  the information to the state agency that operates, licenses,
  certifies, or registers the facility for investigation by that
  agency.
         SECTION 5.  Section 48.103, Human Resources Code, is amended
  by amending Subsection (a) and adding Subsection (c) to read as
  follows:
         (a)  Except as otherwise provided by Subsection (c), on [On]
  determining after an investigation that an elderly [or disabled]
  person or a person with a disability has been abused, exploited, or
  neglected by an employee of a home and community support services
  agency licensed under Chapter 142, Health and Safety Code, the
  department shall:
               (1)  notify the state agency responsible for licensing
  the home and community support services agency of the department's
  determination;
               (2)  notify any health and human services agency, as
  defined by Section 531.001, Government Code, that contracts with
  the home and community support services agency for the delivery of
  health care services of the department's determination; and
               (3)  provide to the licensing state agency and any
  contracting health and human services agency access to the
  department's records or documents relating to the department's
  investigation.
         (c)  This section does not apply to an investigation of
  alleged or suspected abuse, neglect, or exploitation in which a
  provider of home and community-based services is or may be alleged
  to have committed the abuse, neglect, or exploitation. An
  investigation described by this subsection is governed by
  Subchapter F.
         SECTION 6.  Section 48.151(e), Human Resources Code, is
  amended to read as follows:
         (e)  This section does not apply to investigations conducted
  under Subchapter F [or H].
         SECTION 7.  Section 48.201, Human Resources Code, is amended
  to read as follows:
         Sec. 48.201.  APPLICATION OF SUBCHAPTER. Except as
  otherwise provided, this subchapter does not apply to an [a Texas
  Department of Mental Health and Mental Retardation] investigation
  conducted under Subchapter F [or H].
         SECTION 8.  Subchapter F, Chapter 48, Human Resources Code,
  is amended to read as follows:
  SUBCHAPTER F. INVESTIGATIONS OF ABUSE, NEGLECT, OR EXPLOITATION OF
  INDIVIDUALS RECEIVING SERVICES FROM CERTAIN PROVIDERS [IN CERTAIN
  FACILITIES, COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND MENTAL
  RETARDATION AUTHORITIES]
         Sec. 48.251.  DEFINITIONS. (a)  In this subchapter:
               (1)  "Behavioral health services" means:
                     (A)  "mental health services," as defined by
  Section 531.002, Health and Safety Code; and
                     (B)  interventions provided to treat "chemical
  dependency," as defined by Section 462.001, Health and Safety Code.
               (2)  "Community center" and "local mental health
  authority" have the meanings assigned by Section 531.002, Health
  and Safety Code.
               (3)  "Facility" means:
                     (A)  a mental health facility or state supported
  living center listed in Section 532.001(b), Health and Safety Code,
  or a person contracting with a health and human services agency to
  provide inpatient mental health services; and
                     (B)  a facility licensed under Chapter 252, Health
  and Safety Code.
               (4)  "Health and human services agency" has the meaning
  assigned by Section 531.001, Government Code.
               (5)  "Home and community-based services" means
  services provided in the home or community under a waiver granted in
  accordance with 42 U.S.C. Section 1315, 42 U.S.C. Section 1315a, 42
  U.S.C. Section 1396a, or 42 U.S.C. Section 1396n, and as otherwise
  provided by department rule.
               (6)  "Local intellectual and developmental disability
  authority" means an authority defined by Section 531.002(11),
  Health and Safety Code.
               (7)  "Managed care organization" has the meaning
  assigned by Section 533.001, Government Code.
               (8)  "Provider" means:
                     (A)  a facility;
                     (B)  a community center, local mental health
  authority, and local intellectual and developmental disability
  authority;
                     (C)  a person who contracts with a health and
  human services agency or managed care organization to provide home
  and community-based services;
                     (D)  a person who contracts with a Medicaid
  managed care organization to provide behavioral health services;
                     (E)  a managed care organization;
                     (F)  an officer, employee, agent, contractor, or
  subcontractor of a person or entity listed in Paragraphs (A)-(E);
  and
                     (G)  an employee, fiscal agent, case manager, or
  service coordinator of an individual employer participating in the
  consumer-directed service option, as defined by Section 531.051,
  Government Code.
         (b)  The executive commissioner [department] by rule shall
  adopt definitions of "abuse," "neglect," "exploitation," and "an
  individual receiving services" for purposes of this subchapter and
  ["exploitation" to govern] an investigation conducted under this
  subchapter [and Subchapter H].
         Sec. 48.252.  INVESTIGATION OF REPORTS OF ABUSE, NEGLECT, OR
  EXPLOITATION BY PROVIDER [IN CERTAIN FACILITIES AND IN COMMUNITY
  CENTERS]. (a) The department shall receive and, except as provided
  by Subsection (b), shall investigate under this subchapter reports
  of the abuse, neglect, or exploitation of an individual receiving
  services if the person alleged or suspected to have committed the
  abuse, neglect, or exploitation is a provider [with a disability
  receiving services:
               [(1)  in:
                     [(A)     a mental health facility operated by the
  Department of State Health Services; or
                     [(B)     a facility licensed under Chapter 252,
  Health and Safety Code;
               [(2)     in or from a community center, a local mental
  health authority, or a local mental retardation authority; or
               [(3)     through a program providing services to that
  person by contract with a mental health facility operated by the
  Department of State Health Services, a community center, a local
  mental health authority, or a local mental retardation authority].
         (b)  The department may not [shall receive and shall]
  investigate under this subchapter reports of the abuse, neglect, or
  exploitation alleged or suspected to have been committed by a
  provider that is operated, licensed, certified, or registered by a
  state agency that has authority to investigate reports of abuse,
  neglect, or exploitation of an individual by the provider under
  this chapter or other law. The department shall forward any report
  of abuse, neglect, or exploitation alleged or suspected to have
  been committed by a provider described by this subsection to the
  appropriate state agency for investigation [of an individual with a
  disability receiving services:
               [(1)     in a state supported living center or the ICF-MR
  component of the Rio Grande State Center; or
               [(2)     through a program providing services to that
  person by contract with a state supported living center or the
  ICF-MR component of the Rio Grande State Center].
         (c)  The department shall receive and investigate under this
  subchapter reports of abuse, neglect, or exploitation of an
  individual who lives in a residence that is owned, operated, or
  controlled by a provider who provides home and community-based
  services under a home and community-based services waiver program
  described by Section 534.001, Government Code, regardless of
  whether the individual is receiving services under the waiver
  program from the provider. [The department by rule shall define who
  is "an individual with a disability receiving services."
         [(d)     In this section, "community center," "local mental
  health authority," and "local mental retardation authority" have
  the meanings assigned by Section 531.002, Health and Safety Code.]
         Sec. 48.253.  ACTION ON REPORT. (a) On receipt by the
  department of a report of alleged abuse, neglect, or exploitation
  under this subchapter, the department shall initiate a prompt and
  thorough investigation as needed to evaluate the accuracy of the
  report and to assess the need for emergency protective services,
  unless the department, in accordance with rules adopted under this
  subchapter, determines that the report:
               (1)  is frivolous or patently without a factual basis;
  or
               (2)  does not concern abuse, neglect, or exploitation.
         (b)  After receiving a report that alleges that a provider is
  or may be the person who committed the alleged abuse, neglect, or
  exploitation, the department shall notify the provider and the
  appropriate health and human services agency in accordance with
  rules adopted by the executive commissioner.
         (c)  The provider identified under Subsection (b) shall:
               (1)  cooperate completely with an investigation
  conducted under this subchapter; and
               (2)  provide the department complete access during an
  investigation to:
                     (A)  all sites owned, operated, or controlled by
  the provider; and
                     (B)  clients and client records.
         (d)  The executive commissioner shall adopt rules governing
  investigations conducted under this subchapter.
         Sec. 48.254.  FORWARDING OF CERTAIN REPORTS.  (a)  The
  executive commissioner by rule shall establish procedures for the
  department to use to [In accordance with department rules, the
  department shall] forward a copy of the initial intake report and a
  copy of the completed provider investigation report relating to
  alleged or suspected abuse, neglect, or exploitation to the
  appropriate provider and health and human services agency
  [facility, community center, mental health authority, mental
  retardation authority, or program providing mental health or mental
  retardation services under contract with the facility, community
  center, or authority].
         (b)  The department shall redact from an initial intake
  report and from the copy of the completed provider investigation
  report any identifying information contained in the report relating
  to the person who reported the alleged or suspected abuse, neglect,
  or exploitation under Section 48.051.
         (c)  A provider that receives a completed investigation
  report under Subsection (a) shall forward the report to any managed
  care organization with which the provider contracts.
         Sec. 48.255.  RULES FOR INVESTIGATIONS UNDER THIS
  SUBCHAPTER. (a) The executive commissioner [department, the
  Department of Aging and Disability Services, and the Department of
  State Health Services] shall adopt [develop joint] rules to:
               (1)  prioritize investigations conducted under this
  subchapter with the primary criterion being whether there is a risk
  that a delay in the investigation will impede the collection of
  evidence in that investigation;
               (2)  [facilitate investigations in state mental health
  facilities and state supported living centers.
         [(b)     The department, the Department of Aging and Disability
  Services, and the Department of State Health Services by joint
  rules shall] establish procedures for resolving disagreements
  between the department and health and human services agencies [the
  Department of Aging and Disability Services or the Department of
  State Health Services] concerning the department's investigation
  findings; and
               (3)  provide for an appeals process by the department
  for the alleged victim of abuse, neglect, or exploitation.
         (b) [(c)     The department, the Department of Aging and
  Disability Services, and the Department of State Health Services
  shall develop joint rules to facilitate investigations in community
  centers, mental health authorities, and mental retardation
  authorities.
         [(c-1)     The executive commissioner shall adopt rules
  regarding investigations in a facility licensed under Chapter 252,
  Health and Safety Code, to ensure that those investigations are as
  consistent as practicable with other investigations conducted
  under this subchapter.
         [(d)]  A confirmed investigation finding by the department
  may not be changed by the administrator [a superintendent] of a
  [state mental health] facility, [by a director of a state supported
  living center, by a director of] a community center, [or by] a local
  mental health authority, or a local intellectual and developmental
  disability [mental retardation] authority.
         [(e)     The department shall provide by rule for an appeals
  process by the alleged victim of abuse, neglect, or exploitation
  under this section.
         [(f)     The department by rule may assign priorities to an
  investigation conducted by the department under this section. The
  primary criterion used by the department in assigning a priority
  must be the risk that a delay in the investigation will impede the
  collection of evidence.]
         Sec. 48.256.  SHARING PROVIDER INFORMATION. (a)  The
  executive commissioner shall adopt rules that prescribe the
  appropriate manner in which health and human services agencies and
  managed care organizations provide the department with information
  necessary to facilitate identification of individuals receiving
  services from providers and to facilitate notification of providers
  by the department.
         (b)  The executive commissioner shall adopt rules requiring
  a provider to provide information to the administering health and
  human services agency necessary to facilitate identification by the
  department of individuals receiving services from providers and to
  facilitate notification of providers by the department.
         (c)  A provider of home and community-based services under a
  home and community-based services waiver program described by
  Section 534.001, Government Code, shall post in a conspicuous
  location inside any residence owned, operated, or controlled by the
  provider in which home and community-based services are provided, a
  sign that states:
               (1)  the name, address, and telephone number of the
  provider;
               (2)  the effective date of the provider's contract with
  the applicable health and human services agency to provide home and
  community-based services; and
               (3)  the name of the legal entity that contracted with
  the applicable health and human services agency to provide those
  services.
         Sec. 48.257.  RETALIATION PROHIBITED. (a) A provider of
  home and community-based services may not retaliate against a
  person for filing a report or providing information in good faith
  relating to the possible abuse, neglect, or exploitation of an
  individual receiving services.
         (b)  This section does not prohibit a provider of home and
  community-based services from terminating an employee for a reason
  other than retaliation.
         Sec. 48.258.  [SINGLE] TRACKING SYSTEM FOR REPORTS AND
  INVESTIGATIONS. (a) The health and human services agencies
  [department, the Department of Aging and Disability Services, and
  the Department of State Health Services] shall jointly develop and
  implement a [single] system to track reports and investigations
  under this subchapter.
         (b)  To facilitate implementation of the system, the health
  and human services agencies [department, the Department of Aging
  and Disability Services, and the Department of State Health
  Services] shall use appropriate methods of measuring the number and
  outcome of reports and investigations under this subchapter.
         SECTION 9.  Section 48.301, Human Resources Code, is amended
  by amending Subsection (a) and adding Subsection (a-1) to read as
  follows:
         (a)  If the department receives a report of suspected abuse,
  neglect, or exploitation of an elderly [or disabled] person or a
  person with a disability [, other than a disabled person] receiving
  services [as described by Section 48.252,] in a facility operated,
  licensed, certified, or registered by a state agency, the
  department shall refer the report to that agency.
         (a-1)  This subchapter does not apply to a report of
  suspected abuse, neglect, or exploitation of an individual
  receiving services from a provider as described by Subchapter F.
         SECTION 10.  Sections 48.401(1) and (3), Human Resources
  Code, are amended to read as follows:
               (1)  "Agency" means:
                     (A)  an entity licensed under Chapter 142, Health
  and Safety Code;
                     (B)  a person exempt from licensing under Section
  142.003(a)(19), Health and Safety Code;
                     (C)  a facility licensed under Chapter 252, Health
  and Safety Code; or
                     (D)  a provider [an entity] investigated by the
  department under Subchapter F or under Section 261.404, Family
  Code.
               (3)  "Employee" means a person who:
                     (A)  works for:
                           (i)  an agency; or
                           (ii)  an individual employer participating
  in the consumer-directed service option, as defined by Section
  531.051, Government Code;
                     (B)  provides personal care services, active
  treatment, or any other [personal] services to an individual
  receiving agency services, an individual who is a child for whom an
  investigation is authorized under Section 261.404, Family Code, or
  an individual receiving services through the consumer-directed
  service option, as defined by Section 531.051, Government Code; and
                     (C)  is not licensed by the state to perform the
  services the person performs for the agency or the individual
  employer participating in the consumer-directed service option, as
  defined by Section 531.051, Government Code.
         SECTION 11.  The heading to Section 261.404, Family Code, is
  amended to read as follows:
         Sec. 261.404.  INVESTIGATIONS REGARDING CERTAIN CHILDREN
  RECEIVING SERVICES FROM CERTAIN PROVIDERS [WITH MENTAL ILLNESS OR
  MENTAL RETARDATION].
         SECTION 12.  Section 261.404, Family Code, is amended by
  amending Subsections (a) and (b) and adding Subsections (a-1) and
  (a-2) to read as follows:
         (a)  The department shall investigate a report of abuse,
  neglect, or exploitation of a child receiving services from a
  provider, as those terms are defined by Section 48.251, Human
  Resources Code, or as otherwise defined by rule.  The department
  shall also investigate a report of abuse, neglect, or exploitation
  of a child receiving services from an officer, employee, agent,
  contractor, or subcontractor of a home and community support
  services agency licensed under Chapter 142, Health and Safety Code,
  if the officer, employee, agent, contractor, or subcontractor is or
  may be the person alleged to have committed the abuse, neglect, or
  exploitation[:
               [(1)     in a facility operated by the Department of Aging
  and Disability Services or a mental health facility operated by the
  Department of State Health Services;
               [(2)     in or from a community center, a local mental
  health authority, or a local mental retardation authority;
               [(3)     through a program providing services to that
  child by contract with a facility operated by the Department of
  Aging and Disability Services, a mental health facility operated by
  the Department of State Health Services, a community center, a
  local mental health authority, or a local mental retardation
  authority;
               [(4)     from a provider of home and community-based
  services who contracts with the Department of Aging and Disability
  Services; or
               [(5)     in a facility licensed under Chapter 252, Health
  and Safety Code].
         (a-1)  For an investigation of a child living in a residence
  owned, operated, or controlled by a provider of services under a
  home and community-based services waiver program described by
  Section 534.001, Government Code, the department, in accordance
  with Subchapter E, Chapter 48, Human Resources Code, may provide
  emergency protective services necessary to immediately protect the
  child from serious physical harm or death and, if necessary, obtain
  an emergency order for protective services under Section 48.208,
  Human Resources Code.
         (a-2)  For an investigation of a child living in a residence
  owned, operated, or controlled by a provider of services under a
  home and community-based services waiver program described by
  Section 534.001, Government Code, regardless of whether the child
  is receiving services under the program from the provider, the
  department shall provide protective services to the child in
  accordance with Subchapter E, Chapter 48, Human Resources Code.
         (b)  The department shall investigate the report under rules
  developed by the executive commissioner of the Health and Human
  Services Commission [with the advice and assistance of the
  department, the Department of Aging and Disability Services, and
  the Department of State Health Services].
         SECTION 13.  Section 142.009(c), Health and Safety Code, is
  amended to read as follows:
         (c)  The department or its authorized representative shall
  investigate each complaint received regarding the provision of home
  health, hospice, or personal assistance services[, including any
  allegation of abuse, neglect, or exploitation of a child under the
  age of 18,] and may, as a part of the investigation:
               (1)  conduct an unannounced survey of a place of
  business, including an inspection of medical and personnel records,
  if the department has reasonable cause to believe that the place of
  business is in violation of this chapter or a rule adopted under
  this chapter;
               (2)  conduct an interview with a recipient of home
  health, hospice, or personal assistance services, which may be
  conducted in the recipient's home if the recipient consents;
               (3)  conduct an interview with a family member of a
  recipient of home health, hospice, or personal assistance services
  who is deceased or other person who may have knowledge of the care
  received by the deceased recipient of the home health, hospice, or
  personal assistance services; or
               (4)  interview a physician or other health care
  practitioner, including a member of the personnel of a home and
  community support services agency, who cares for a recipient of
  home health, hospice, or personal assistance services.
         SECTION 14.  Section 260A.002, Health and Safety Code, is
  amended by adding Subsection (a-1) to read as follows:
         (a-1)  Notwithstanding any other provision of this chapter,
  a report made under this section that a provider is or may be
  alleged to have committed abuse, neglect, or exploitation of a
  resident of a facility other than a prescribed pediatric extended
  care center shall be investigated by the Department of Family and
  Protective Services in accordance with Subchapter F, Chapter 48,
  Human Resources Code, and this chapter does not apply to that
  investigation.  In this subsection, "facility" and "provider" have
  the meanings assigned by Section 48.251, Human Resources Code.
         SECTION 15.  The following are repealed:
               (1)  Section 261.404(f), Family Code; and
               (2)  Subchapter H, Chapter 48, Human Resources Code.
         SECTION 16.  This Act takes effect September 1, 2015.