85R8021 KKR-F

By: Cortez H.B. No. 1726

A BILL TO BE ENTITLED

AN ACT

relating to the abuse, neglect, and exploitation of recipients of home health services; providing penalties; creating an offense.

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

SECTION 1. Subtitle G, Title 2, Health and Safety Code, is amended by adding Chapter 142A to read as follows:

CHAPTER 142A. REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF

RECIPIENTS OF CERTAIN SERVICES

Sec. 142A.001. DEFINITIONS. In this chapter:

(1) "Abuse" means:

(A) the negligent or wilful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain to a recipient by the recipient's caregiver, family member, or other individual who has an ongoing relationship with the recipient; or

(B) sexual abuse of a recipient, including any involuntary or nonconsensual sexual conduct that would constitute an offense under Section 21.08, Penal Code (Indecent Exposure), or Chapter 22, Penal Code (Assaultive Offenses), committed by the recipient's caregiver, family member, or other individual who has an ongoing relationship with the recipient.

(2) "Exploitation" means the illegal or improper act or process of a caregiver, family member, or other individual who has an ongoing relationship with the recipient using the resources of a recipient for monetary or personal benefit, profit, or gain without the informed consent of the recipient.

(3) "Neglect" means the failure to provide for one's self the goods or services, including medical services, that are necessary to avoid physical or emotional harm or pain or the failure of a caregiver to provide the goods or services.

(4) "Recipient" means an individual, including a patient, who receives a service.

(5) "Service" means a home health service as defined by Section 142.001.

Sec. 142A.002. REPORTING OF ABUSE, NEGLECT, AND EXPLOITATION. (a) A person, including an employee of a person licensed under Chapter 142 to provide a service, who has cause to believe that the physical or mental health or welfare of a recipient has been or may be adversely affected by abuse, neglect, or exploitation caused by another person shall report the abuse, neglect, or exploitation in accordance with this chapter.

(b) Each person licensed under Chapter 142 to provide a service shall require each employee providing a service, as a condition of employment with the person, to sign a statement acknowledging that the employee may be criminally liable for failure to report the abuse, neglect, or exploitation.

(c) A person shall make an oral report to the commission immediately on learning of the abuse, neglect, or exploitation and shall make a written report to the commission not later than the fifth day after the date the oral report is made.

Sec. 142A.003. CONTENTS OF REPORT. (a) A report of abuse, neglect, or exploitation is nonaccusatory and reflects the reporting person's belief that a recipient has been or will be abused, neglected, or exploited or has died as a result of abuse or neglect.

(b) The report must contain:

(1) the name and address of the recipient;

(2) the name and address of the person responsible for the care of the recipient, if available; and

(3) other relevant information.

(c) Except for an anonymous report made under Section 142A.004, a report of abuse, neglect, or exploitation under Section 142A.002 must include the address or phone number of the person making the report to enable an investigator to contact the person for any necessary additional information. The phone number, address, and name of the person making the report must be redacted from any copy of the report or information from the report that is released to the public, to the person licensed under Chapter 142 to provide a service, or to an agent of the person licensed under Chapter 142 to provide a service.

Sec. 142A.004. ANONYMOUS REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION. (a) The commission shall accept but discourage the submission of an anonymous report of abuse, neglect, or exploitation, and, subject to Subsection (b), act on the report in the same manner as the commission acts on an acknowledged report.

(b) The commission is not required to investigate an anonymous report that accuses a named individual of abuse, neglect, or exploitation.

Sec. 142A.005. TELEPHONE HOTLINE; PROCESSING OF REPORTS. (a) The commission shall operate a telephone hotline to:

(1) receive reports of abuse, neglect, or exploitation under this chapter; and

(2) assign investigators.

(b) A person shall make a report of abuse, neglect, or exploitation to the commission's telephone hotline or to a local or state law enforcement agency. A report relating to abuse, neglect, or exploitation or another complaint alleging conduct described in Section 142A.007(c) must be made to the commission's telephone hotline and to the law enforcement agency described by Section 142A.016(a).

(c) Except as provided by Section 142A.016, a local or state law enforcement agency that receives a report of abuse, neglect, or exploitation shall refer the report to the commission.

Sec. 142A.006. NOTICE. (a) Each person licensed under Chapter 142 to provide a service shall prominently and conspicuously post a sign for display in a public area of the person's headquarters or office that is readily available to employees and visitors.

(b) The sign must include the statement: "CASES OF SUSPECTED ABUSE, NEGLECT, OR EXPLOITATION SHALL BE REPORTED TO THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION BY CALLING (insert telephone hotline number)."

(c) A person licensed under Chapter 142 to provide a service shall provide the telephone hotline number to an immediate family member of each recipient of services on provision of the first service to the recipient.

Sec. 142A.007. INVESTIGATION AND REPORT OF COMMISSION. (a) The commission shall make a thorough investigation after receiving an oral or written report of abuse, neglect, or exploitation under Section 142A.002 or another complaint alleging abuse, neglect, or exploitation.

(b) The primary purpose of the investigation is the protection of the recipient.

(c) The commission shall begin the investigation:

(1) within 24 hours after receipt of a report or other complaint of abuse, neglect, or exploitation alleging that:

(A) a recipient's health or safety is in imminent danger;

(B) a recipient has recently died because of conduct alleged in the report of abuse, neglect, or exploitation or other complaint;

(C) a recipient has been hospitalized or been treated in an emergency room because of conduct alleged in the report of abuse, neglect, or exploitation or other complaint;

(D) a recipient has been a victim of any act or attempted act described by Section 21.02, 21.11, 22.011, or 22.021, Penal Code; or

(E) a recipient has suffered bodily injury, as defined by Section 1.07, Penal Code, because of conduct alleged in the report of abuse, neglect, or exploitation or other complaint; or

(2) before the end of the next working day after the date of receipt of the report of abuse, neglect, or exploitation or other complaint if the report or complaint alleges the existence of circumstances that could result in abuse, neglect, or exploitation and that could place a recipient's health or safety in imminent danger.

(d) The executive commissioner shall adopt rules governing the conduct of investigations, including procedures to ensure the complainant and the recipient, the recipient's next of kin, and any person designated to receive information concerning the recipient receive periodic information regarding the investigation.

(e) In investigating a report of abuse, neglect, or exploitation or other complaint, the investigator for the commission shall:

(1) make an unannounced visit to the place at which a service is provided to the recipient to determine the nature and cause of the alleged abuse, neglect, or exploitation of the recipient;

(2) interview each available witness, including the recipient who suffered the alleged abuse, neglect, or exploitation if the recipient is able to communicate, or another recipient or other witness identified by any source as having personal knowledge relevant to the report of abuse, neglect, or exploitation or other complaint;

(3) personally inspect any physical circumstance that is relevant and material to the report of abuse, neglect, or exploitation or other complaint and that may be objectively observed;

(4) make a photographic record of any injury to a recipient, subject to Subsection (m); and

(5) write an investigation report that includes:

(A) the investigator's personal observations;

(B) a review of relevant documents and records;

(C) a summary of each witness statement, including the statement of the recipient who suffered the alleged abuse, neglect, or exploitation and any other recipient interviewed in the investigation; and

(D) a statement of the factual basis for the findings for each incident or problem alleged in the report or other allegation.

(f) An investigator shall conduct an interview under Subsection (e) in private unless the witness expressly requests that the interview not be private.

(g) Not later than the 30th day after the date the investigation is complete, the investigator shall prepare the written report required by Subsection (e). The commission shall make the investigation report available to the public on request after the date the commission's letter of determination is complete. The commission shall delete from any copy made available to the public:

(1) the name of:

(A) any recipient, unless the commission receives written authorization from a recipient or the recipient's legal representative requesting that the recipient's name be left in the report;

(B) the person making the report of abuse, neglect, or exploitation or other complaint; and

(C) a person interviewed in the investigation; and

(2) photographs of any injury to the recipient.

(h) In the investigation, the commission shall determine:

(1) the nature, extent, and cause of the abuse, neglect, or exploitation;

(2) the identity of the person responsible for the abuse, neglect, or exploitation;

(3) the names and conditions of the other recipients;

(4) an evaluation of the persons responsible for the care of the recipients;

(5) the adequacy of the environment in which a service is provided; and

(6) any other information required by the commission.

(i) Before the completion of the investigation, the commission shall file a petition for temporary care and protection of the recipient if the commission determines the action is necessary to protect the recipient from further abuse, neglect, or exploitation.

(j) The commission shall make a complete final written report of the investigation and submit the report and its recommendations to the district attorney and, if a law enforcement agency has not investigated the report of abuse, neglect, or exploitation or other complaint, to the appropriate law enforcement agency.

(k) Within 24 hours after receipt of a report of abuse, neglect, or exploitation or other complaint described by Subsection (c)(1), the commission shall report the report or complaint to the law enforcement agency described by Section 142A.016(a). The commission shall cooperate with that law enforcement agency in the investigation of the report or complaint as described by Section 142A.016.

(l) The inability or unwillingness of a local law enforcement agency to conduct a joint investigation under Section 142A.016 does not constitute grounds to prevent or prohibit the commission from performing its duties under this chapter. The commission shall document any instance in which a law enforcement agency is unable or unwilling to conduct a joint investigation under Section 142A.016.

(m) If the commission determines that, before a photographic record of an injury to a recipient may be made under Subsection (e), consent is required under state or federal law, the investigator:

(1) shall seek to obtain any required consent; and

(2) may not make the photographic record unless the consent is obtained.

Sec. 142A.008. CONFIDENTIALITY. A report, record, or working paper used or developed in an investigation made under this chapter and the name, address, and phone number of any person making a report under this chapter are confidential and may be disclosed only for purposes consistent with rules adopted by the executive commissioner. The report, record, or working paper and the name, address, and phone number of the person making the report shall be disclosed to a law enforcement agency as necessary to allow the law enforcement agency to investigate a report of abuse, neglect, or exploitation or other complaint in accordance with Section 142A.016.

Sec. 142A.009. IMMUNITY. (a) A person who makes a report as provided by this chapter is immune from civil or criminal liability that, in the absence of the immunity, might result from making the report.

(b) The immunity provided by this section extends to participation in any judicial proceeding that results from the report.

(c) This section does not apply to a person who makes a report in bad faith or with malice.

Sec. 142A.010. PRIVILEGED COMMUNICATIONS. In a proceeding regarding the abuse, neglect, or exploitation of a recipient or the cause of any abuse, neglect, or exploitation, evidence may not be excluded on the ground of privileged communication other than a communication between an attorney and client.

Sec. 142A.011. CENTRAL REGISTRY. (a) The commission shall maintain in the city of Austin a central registry of reported cases of recipient abuse, neglect, or exploitation.

(b) The executive commissioner may adopt rules necessary to carry out this section.

(c) The rules shall provide for cooperation with hospitals and clinics in the exchange of reports of recipient abuse, neglect, or exploitation.

Sec. 142A.012. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A person commits an offense if the person has cause to believe that a recipient's physical or mental health or welfare has been or may be further adversely affected by abuse, neglect, or exploitation and knowingly fails to report in accordance with Section 142A.002.

(b) An offense under this section is a Class A misdemeanor.

Sec. 142A.013. MALICIOUS, RECKLESS, OR BAD FAITH REPORTING; CRIMINAL PENALTY. (a) A person commits an offense if the person makes a report under this chapter maliciously, recklessly, or in bad faith.

(b) An offense under this section is a Class A misdemeanor.

(c) The criminal penalty provided by this section is in addition to any civil penalties for which the person may be liable.

Sec. 142A.014. RETALIATION AGAINST EMPLOYEES PROHIBITED. (a) In this section, "employee" means an individual who is an employee of a person licensed under Chapter 142 to provide a service or any other individual who provides services for compensation, including a contract laborer for the person.

(b) An employee has a cause of action against a person licensed under Chapter 142 to provide a service, or another employee of the person, who suspends or terminates the employment of the employee or otherwise disciplines, discriminates, or retaliates against the employee for reporting to the employee's supervisor, an administrator of the person, the commission, or a law enforcement agency a violation of law or for initiating or cooperating in any investigation or proceeding of a governmental entity relating to the provision of the service.

(c) The petitioner may recover:

(1) the greater of $1,000 or actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown, and damages for lost wages for a petitioner whose employment was suspended or terminated;

(2) exemplary damages;

(3) court costs; and

(4) reasonable attorney's fees.

(d) In addition to the amounts that may be recovered under Subsection (c), a person whose employment is suspended or terminated is entitled to appropriate injunctive relief, including, if applicable:

(1) reinstatement in the person's former position; and

(2) reinstatement of lost fringe benefits or seniority rights.

(e) The petitioner, not later than the 90th day after the date on which the person's employment is suspended or terminated, must bring suit or notify the Texas Workforce Commission of the petitioner's intent to sue under this section. A petitioner who notifies the Texas Workforce Commission under this subsection must bring suit not later than the 90th day after the date notice is delivered to the commission. On receipt of the notice, the commission shall notify the service of the petitioner's intent to bring suit under this section.

(f) The petitioner has the burden of proof, except there is a rebuttable presumption that the person's employment was suspended or terminated for reporting abuse, neglect, or exploitation if the person is suspended or terminated within 60 days after the date the person reported the abuse, neglect, or exploitation in good faith.

(g) A suit under this section may be brought in the district court of the county in which:

(1) the plaintiff resides;

(2) the plaintiff was employed by the defendant; or

(3) the defendant conducts business.

(h) Each person licensed under Chapter 142 to provide a service shall require each employee of the person, as a condition of employment, to sign a statement that the employee understands the employee's rights under this section. The statement must be part of the statement required under Section 142A.002. If a person licensed under Chapter 142 to provide a service does not require an employee to read and sign the statement, the periods under Subsection (e) do not apply, and the petitioner must bring suit not later than the second anniversary of the date on which the petitioner's employment is suspended or terminated.

Sec. 142A.015. RETALIATION AGAINST VOLUNTEERS, RECIPIENTS, OR FAMILY MEMBERS OR GUARDIANS OF RECIPIENTS. (a) A person licensed under Chapter 142 to provide a service may not retaliate or discriminate against a volunteer, recipient, or family member or guardian of a recipient because the volunteer, recipient, family member or guardian of a recipient, or any other person:

(1) makes a complaint or files a grievance concerning the person;

(2) reports a violation of law; or

(3) initiates or cooperates in an investigation or proceeding of a governmental entity relating to the provision of the service.

(b) A volunteer, recipient, or family member or guardian of a recipient who is retaliated or discriminated against in violation of Subsection (a) is entitled to sue for:

(1) injunctive relief;

(2) the greater of $1,000 or actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown;

(3) exemplary damages;

(4) court costs; and

(5) reasonable attorney's fees.

(c) A volunteer, recipient, or family member or guardian of a recipient who seeks relief under this section must report the alleged violation not later than the 180th day after the date the alleged violation of this section occurred or was discovered by the volunteer, recipient, or family member or guardian of the recipient through reasonable diligence.

(d) A suit under this section may be brought in the district court of the county in which the service is located or in a district court of Travis County.

Sec. 142A.016. DUTIES OF LAW ENFORCEMENT; JOINT INVESTIGATION. (a) The commission shall investigate a report of abuse, neglect, or exploitation or other complaint described by Section 142A.007(c)(1) jointly with:

(1) the municipal law enforcement agency, if the service is provided at a location within the territorial boundaries of a municipality; or

(2) the sheriff's department of the county in which the service is provided, if the service is not provided at a location within the territorial boundaries of a municipality.

(b) The law enforcement agency described by Subsection (a) shall acknowledge the report of abuse, neglect, or 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 commission and report to the commission the results of the investigation.

(c) The requirement that the law enforcement agency and the commission 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. Section 142.009, Health and Safety Code, is amended by amending Subsection (c) and adding Subsection (c-1) to read as follows:

(c) Except as provided by Subsection (c-1), the commission [The department] or its authorized representative shall investigate each complaint received regarding the provision of home health, hospice, habilitation, or personal assistance services 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 commission [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, habilitation, 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, habilitation, 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, habilitation, 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, habilitation, or personal assistance services.

(c-1) A complaint that constitutes a report of abuse, neglect, or exploitation in connection with the provision of a home health service is governed by Chapter 142A.

SECTION 3. Section 142.018, Health and Safety Code, is repealed.

SECTION 4. The change in law made by this Act applies only to a licensing action under Chapter 142, Health and Safety Code, for conduct that occurs on or after 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 5. This Act takes effect September 1, 2017.