81R7930 UM-D
By: Rose H.B. No. 1317
A BILL TO BE ENTITLED
AN ACT
relating to the protection and care of individuals with mental
retardation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 261.404, Family Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) If an investigation under this section reveals
evidence of abuse, neglect, or exploitation of a resident or client
of a state developmental center as defined by Section 531.002,
Health and Safety Code, or the ICF-MR component of the Rio Grande
State Center, and a caseworker of the department or a supervisor of
a caseworker believes that the abuse, neglect, or exploitation is a
criminal offense, the caseworker or supervisor shall immediately
notify the Health and Human Services Commission's office of
inspector general and promptly provide the Health and Human
Services Commission's office of inspector general with a copy of
the department's investigation report.
SECTION 2. Subchapter F, Chapter 411, Government Code, is
amended by adding Section 411.1144 to read as follows:
Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS AT STATE
DEVELOPMENTAL CENTERS. (a) The Department of State Health
Services and the Department of Aging and Disability Services are
entitled to obtain from the department criminal history record
information maintained by the department that relates to a person:
(1) who is:
(A) an applicant for employment with the agency;
(B) an employee of the agency;
(C) a volunteer with the agency; or
(D) an applicant for a volunteer position with
the agency; and
(2) who would be placed in direct contact with a
resident or client of a state developmental center or the ICF-MR
component of the Rio Grande State Center.
(b) Criminal history record information obtained by an
agency under Subsection (a) may not be released or disclosed to any
person except:
(1) on court order;
(2) with the consent of the person who is the subject
of the criminal history record information;
(3) for purposes of an administrative hearing held by
the agency concerning the person who is the subject of the criminal
history record information; or
(4) as provided by Subsection (c).
(c) An agency is not prohibited from releasing criminal
history record information obtained under Subsection (a) or (d) to
the person who is the subject of the criminal history record
information.
(d) Subject to Section 411.087, the Department of State
Health Services and the Department of Aging and Disability Services
are entitled to:
(1) obtain through the Federal Bureau of Investigation
criminal history record information maintained or indexed by that
bureau that pertains to a person described by Subsection (a); and
(2) obtain from any other criminal justice agency in
this state criminal history record information maintained by that
criminal justice agency that relates to a person described by
Subsection (a).
SECTION 3. Subchapter C, Chapter 531, Government Code, is
amended by adding Section 531.1022 to read as follows:
Sec. 531.1022. ASSISTING CERTAIN INVESTIGATIONS BY LAW
ENFORCEMENT. (a) The office of inspector general shall employ and
commission peace officers for the sole purpose of assisting a state
or local law enforcement agency in the investigation of an alleged
criminal offense involving a resident or client of a state
developmental center as defined by Section 531.002, Health and
Safety Code, or the ICF-MR component of the Rio Grande State Center.
A peace officer employed and commissioned by the office is a peace
officer for purposes of Article 2.12, Code of Criminal Procedure.
(b) The office of inspector general shall prepare a final
report for each investigation conducted under this section. The
office shall ensure that the report does not contain identifying
information of an individual mentioned in the report. The final
report must include:
(1) a summary of the activities performed by the
office of inspector general in conducting the investigation;
(2) a statement regarding whether the investigation
resulted in a finding that an alleged criminal offense was
committed; and
(3) a description of the alleged criminal offense that
was committed.
(c) The office of inspector general shall deliver the final
report to the:
(1) executive commissioner;
(2) commissioner of the Department of Aging and
Disability Services;
(3) commissioner of the Department of Family and
Protective Services;
(4) Aging and Disability Services Council;
(5) governor;
(6) lieutenant governor;
(7) speaker of the house of representatives;
(8) standing committees of the senate and house of
representatives with primary jurisdiction over state developmental
centers; and
(9) state auditor.
(d) A final report regarding an investigation is subject to
required disclosure under Chapter 552. All information and
materials compiled by the office of inspector general in connection
with an investigation are confidential, and not subject to
disclosure under Chapter 552, and not subject to disclosure,
discovery, subpoena, or other means of legal compulsion for their
release to anyone other than the office or its employees or agents
involved in the investigation conducted by the office, except that
this information may be disclosed to the office of the attorney
general, the state auditor's office, and law enforcement agencies.
(e) The office of inspector general shall prepare an annual
status report of its activities under this section. The annual
report may not contain identifying information of an individual
mentioned in the report. The annual status report must include
information that is aggregated and disaggregated by individual
state developmental center or the ICF-MR component of the Rio
Grande State Center regarding:
(1) the number and type of alleged offenses
investigated by the office;
(2) the number and type of alleged offenses involving
an employee of a state developmental center or the ICF-MR component
of the Rio Grande State Center;
(3) the relationship of an alleged victim to an
alleged perpetrator; and
(4) the number of investigations conducted that
involve the suicide, death, or hospitalization of an alleged
victim.
(f) The office of inspector general shall submit the annual
status report to the:
(1) executive commissioner;
(2) commissioner of the Department of Aging and
Disability Services;
(3) commissioner of the Department of Family and
Protective Services;
(4) Aging and Disability Services Council;
(5) Family and Protective Services Council;
(6) governor;
(7) lieutenant governor;
(8) speaker of the house of representatives;
(9) standing committees of the senate and house of
representatives with primary jurisdiction over state developmental
centers;
(10) state auditor; and
(11) comptroller.
(g) An annual status report submitted under this section is
public information under Chapter 552.
SECTION 4. Section 252.122(a), Health and Safety Code, is
amended to read as follows:
(a) A person, including an owner or employee of a facility,
who has cause to believe that the physical or mental health or
welfare of a resident has been or may be adversely affected by abuse
or neglect caused by another person shall report the abuse or
neglect to the Department of Family and Protective Services
[department], to a designated agency, or to both the Department of
Family and Protective Services [department] and the designated
agency, as specified in [department] rules adopted by the
Department of Family and Protective Services.
SECTION 5. Section 252.124(b), Health and Safety Code, is
amended to read as follows:
(b) A local or state law enforcement agency that receives a
report of abuse or neglect shall refer the report to the Department
of Family and Protective Services [department] or the designated
agency.
SECTION 6. Sections 252.125(a), (c), (d), (e), (f), and
(g), Health and Safety Code, are amended to read as follows:
(a) The Department of Family and Protective Services
[department] or the designated agency shall make a thorough
investigation promptly after receiving either the oral or written
report.
(c) In the investigation, the Department of Family and
Protective Services [department] or the designated agency shall
determine:
(1) the nature, extent, and cause of the abuse or
neglect;
(2) the identity of the person responsible for the
abuse or neglect;
(3) the names and conditions of the other residents;
(4) an evaluation of the persons responsible for the
care of the residents;
(5) the adequacy of the facility environment; and
(6) any other information required by the Department
of Family and Protective Services [department].
(d) The investigation may include a visit to the resident's
facility and an interview with the resident, if considered
appropriate by the Department of Family and Protective Services
[department].
(e) If the Department of Family and Protective Services
[department] attempts to carry out an on-site investigation and it
is shown that admission to the facility or any place where a
resident is located cannot be obtained, a probate or county court
shall order the person responsible for the care of the resident or
the person in charge of a place where the resident is located to
allow admission for the investigation and any interview with the
resident.
(f) Before the completion of the investigation, the
Department of Family and Protective Services [department] shall
file a petition for temporary care and protection of the resident if
the Department of Family and Protective Services [department]
determines that immediate removal is necessary to protect the
resident from further abuse or neglect.
(g) The Department of Family and Protective Services
[department] or the designated agency shall make a complete written
report of the investigation and submit the report and its
recommendations to the district attorney and the appropriate law
enforcement agency and, if necessary, to the Department of Family
and Protective Services [department] on the Department of Family
and Protective Services' [department's] request.
SECTION 7. Section 252.126, Health and Safety Code, is
amended to read as follows:
Sec. 252.126. CONFIDENTIALITY. A report, record, or
working paper used or developed in an investigation made under this
subchapter is confidential and may be disclosed only for purposes
consistent with the rules adopted by the executive commissioner of
the Health and Human Services Commission [board] or the designated
agency.
SECTION 8. Section 252.129, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) The department and the Department of Family and
Protective Services shall cooperate to ensure that the central
registry required by this section accurately includes reported
cases of resident abuse and neglect.
SECTION 9. Sections 252.134(a) through (e), Health and
Safety Code, are amended to read as follows:
(a) A facility licensed under this chapter shall submit a
report to the Department of Family and Protective Services
[department] concerning the death of:
(1) a resident of the facility; and
(2) a former resident that occurs 24 hours or less
after the former resident is transferred from the facility to a
hospital.
(b) The report must be submitted not later than the 10th
working day after the last day of each month in which a resident of
the facility dies. The facility must make the report on a form
prescribed by the Department of Family and Protective Services
[department]. The report must contain the name and social security
number of the deceased.
(c) The Department of Family and Protective Services
[department] shall correlate reports under this section with death
certificate information to develop data relating to the:
(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) Unless specified by rules adopted by the executive
commissioner of the Health and Human Services Commission [board
rule], a record under this section is confidential and not subject
to the provisions of Chapter 552, Government Code.
(e) The Department of Family and Protective Services
[department] shall develop statistical information on official
causes of death to determine patterns and trends of incidents of
death among persons with mental retardation and related conditions
and in specific facilities. Information developed under this
subsection is not confidential.
SECTION 10. Section 531.002(17), Health and Safety Code, is
amended to read as follows:
(17) "State developmental center [school]" means a
state-supported and structured residential facility operated by
the Department of Aging and Disability Services [department] to
provide to clients with mental retardation a variety of services,
including medical treatment, specialized therapy, and training in
the acquisition of personal, social, and vocational skills.
SECTION 11. Chapter 531, Health and Safety Code, is amended
by adding Section 531.0021 to read as follows:
Sec. 531.0021. REFERENCE TO STATE SCHOOL OR SUPERINTENDENT.
(a) A reference in law to a "state school" means a state
developmental center.
(b) A reference in law to a "superintendent," to the extent
the term is intended to refer to the person in charge of a state
developmental center, means the director of a state developmental
center.
SECTION 12. Section 532.001(b), Health and Safety Code, is
amended to read as follows:
(b) The department also includes community services
operated by the department and the following facilities:
(1) the central office of the department;
(2) the Austin State Hospital;
(3) the Big Spring State Hospital;
(4) the Kerrville State Hospital;
(5) the Rusk State Hospital;
(6) the San Antonio State Hospital;
(7) the Terrell State Hospital;
(8) the North Texas State Hospital;
(9) the Abilene State Developmental Center [School];
(10) the Austin State Developmental Center [School];
(11) the Brenham State Developmental Center [School];
(12) the Corpus Christi State Developmental Center
[School];
(13) the Denton State Developmental Center [School];
(14) the Lubbock State Developmental Center [School];
(15) the Lufkin State Developmental Center [School];
(16) the Mexia State Developmental Center [School];
(17) the Richmond State Developmental Center
[School];
(18) the San Angelo State Developmental Center
[School];
(19) the San Antonio State Developmental Center
[School];
(20) the El Paso State Developmental Center;
(21) the Rio Grande State Center; and
(22) the Waco Center for Youth.
SECTION 13. Section 551.022, Health and Safety Code, is
amended by adding Subsection (e) to read as follows:
(e) This section does not apply to a state developmental
center or the director of a state developmental center.
SECTION 14. Subchapter B, Chapter 551, Health and Safety
Code, is amended by adding Section 551.0225 to read as follows:
Sec. 551.0225. POWERS AND DUTIES OF STATE DEVELOPMENTAL
CENTER DIRECTOR. (a) The director of a state developmental center
is the administrative head of the center.
(b) The director of a state developmental center has the
custody of and responsibility to care for the buildings, grounds,
furniture, and other property relating to the center.
(c) The director of a state developmental center shall:
(1) oversee the admission and discharge of residents
and clients;
(2) keep a register of all residents and clients
admitted to or discharged from the center;
(3) supervise repairs and improvements to the center;
(4) ensure that center money is spent judiciously and
economically;
(5) keep an accurate and detailed account of all money
received and spent, stating the source of the money and on whom and
the purpose for which the money is spent; and
(6) keep a full record of the center's operations.
(d) In accordance with departmental rules and operating
procedures, the director of a state developmental center may:
(1) establish policy to govern the state developmental
center that the director considers will best promote the residents'
interest and welfare;
(2) hire subordinate officers, teachers, and other
employees and set their salaries, in the absence of other law; and
(3) dismiss a subordinate officer, teacher, or
employee.
SECTION 15. Subtitle B, Title 7, Health and Safety Code, is
amended by adding Chapter 555 to read as follows:
CHAPTER 555. STATE DEVELOPMENTAL CENTERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 555.001. DEFINITIONS. In this chapter:
(1) "Alleged offender resident" means a person with
mental retardation who has been committed to or transferred to a
state developmental center under Chapter 55, Family Code, or
Chapter 46B or 46C, Code of Criminal Procedure.
(2) "Center employee" means an employee of a state
developmental center or the ICF-MR component of the Rio Grande
State Center.
(3) "Client" means a person with mental retardation
who receives ICF-MR services from a state developmental center or
the ICF-MR component of the Rio Grande State Center.
(4) "Commission" means the Health and Human Services
Commission.
(5) "Complaint" means information received by the
office of independent ombudsman regarding a possible violation of a
right of a resident or client of a state developmental center and
includes information received regarding a failure by a state
developmental center to comply with the department's policies and
procedures relating to the community living options information
process.
(6) "Department" means the Department of Aging and
Disability Services.
(7) "Direct care employee" means a center employee who
provides direct delivery of services to a resident or client.
(8) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(9) "Independent ombudsman" means the individual who
has been appointed to the office of independent ombudsman.
(10) "Office" means the office of independent
ombudsman established under Subchapter C.
(11) "Resident" means a person with mental retardation
who resides in a state developmental center or the ICF-MR component
of the Rio Grande State Center.
(12) "State developmental center" has the meaning
assigned by Section 531.002.
(13) "State developmental center employee" means an
employee of a state developmental center.
Sec. 555.002. STATE DEVELOPMENTAL CENTER FOR ALLEGED
OFFENDER RESIDENTS. (a) The department shall establish a separate
state developmental center for the care of alleged offender
residents apart from other clients and residents. The department
shall designate an existing state developmental center for this
purpose.
(b) In establishing a state developmental center designated
for alleged offender residents, the department shall:
(1) transfer an alleged offender resident already
residing in a state developmental center to the designated state
developmental center;
(2) place alleged offender residents in separate homes
at the designated state developmental center based on whether the
alleged offender resident is:
(A) an adult or a person younger than 18 years of
age; or
(B) male or female;
(3) place all alleged offender residents committed to
or transferred to a state developmental center in the designated
state developmental center;
(4) divert future admissions of residents who are not
alleged offenders from the designated state developmental center;
and
(5) provide training regarding the service delivery
system for alleged offender residents to direct care employees of
the designated state developmental center.
(c) Notwithstanding Section 594.014, an alleged offender
resident who is transferred to the designated state developmental
center is not entitled to an administrative hearing regarding a
transfer of the resident.
(d) The department shall ensure that the designated state
developmental center complies with the requirements for ICF-MR
certification under the Medicaid program as appropriate.
[Sections 555.003-555.020 reserved for expansion]
SUBCHAPTER B. POWERS AND DUTIES
Sec. 555.021. REQUIRED CRIMINAL HISTORY CHECKS FOR
EMPLOYEES AND VOLUNTEERS. (a) The department and the Department of
State Health Services shall perform a state and federal criminal
history background check on a person:
(1) who is:
(A) an applicant for employment with the agency;
(B) an employee of the agency;
(C) a volunteer with the agency; or
(D) an applicant for a volunteer position with
the agency; and
(2) who would be placed in direct contact with a
resident or client.
(b) The executive commissioner shall adopt rules requiring
a person described by Subsection (a) to submit fingerprints in a
form and of a quality acceptable to the Department of Public Safety
and the Federal Bureau of Investigation for use in conducting a
criminal history background check.
(c) Each agency shall obtain electronic updates from the
Department of Public Safety of arrests and convictions of a person:
(1) for whom the agency performs a background check
under Subsection (a); and
(2) who remains an employee or volunteer of the agency
and continues to have direct contact with a resident or client.
Sec. 555.022. DRUG TESTING; POLICY. (a) The executive
commissioner by rule shall adopt a policy regarding random testing
and reasonable suspicion testing for the illegal use of drugs by a
state developmental center employee.
(b) The director of a state developmental center shall
enforce the policy adopted under Subsection (a) by performing
necessary drug testing of the state developmental center employees
for the use of a controlled substance as defined by Section 481.002.
(c) Testing under this section may be performed on a random
basis or on reasonable suspicion of the use of a controlled
substance.
(d) For purposes of this section, a report made under
Section 555.023 is considered reasonable suspicion of the use of a
controlled substance.
Sec. 555.023. REPORTS OF ILLEGAL DRUG USE; POLICY. The
executive commissioner by rule shall adopt a policy requiring a
state developmental center employee who knows or reasonably
suspects that another state developmental center employee is
illegally using or under the influence of a controlled substance,
as defined by Section 481.002, to report that knowledge or
reasonable suspicion to the director of the state developmental
center.
Sec. 555.024. CENTER EMPLOYEE TRAINING. (a) Before a
center employee begins to perform the employee's duties without
direct supervision, the department shall provide the employee with
competency training and a course of instruction about the general
duties of a center employee. The department shall ensure the basic
center employee competency course focuses on:
(1) the uniqueness of the individuals the center
employee serves;
(2) techniques for improving quality of life for and
promoting the health and safety of individuals with mental
retardation; and
(3) the conduct expected of center employees.
(b) The department shall ensure the training required by
Subsection (a) provides instruction and information regarding the
following topics:
(1) the general operation and layout of the state
developmental center, including armed intruder lockdown
procedures;
(2) an introduction to mental retardation;
(3) an introduction to mental illness and dual
diagnosis;
(4) the rights of individuals with mental retardation
who receive services from the department;
(5) respecting personal choices made by residents and
clients;
(6) the safe and proper use of restraints;
(7) recognizing and reporting:
(A) abuse, neglect, and exploitation of
individuals with mental retardation;
(B) unusual incidents;
(C) reasonable suspicion of illegal drug use in
the workplace;
(D) workplace violence; or
(E) sexual harassment in the workplace;
(8) preventing and treating infection;
(9) first aid;
(10) cardiopulmonary resuscitation;
(11) the Health Insurance Portability and
Accountability Act of 1996 (29 U.S.C. Section 1181 et seq.); and
(12) civil rights of center employees.
(c) In addition to the training required by Subsection (a)
and before a direct care employee begins to perform the direct care
employee's duties without direct supervision, the department shall
provide a direct care employee with training and instructional
information regarding the following topics:
(1) prevention and management of aggressive behavior;
(2) observing and reporting changes in behavior,
appearance, or health of residents and clients;
(3) positive behavior support;
(4) emergency response;
(5) person-directed plans;
(6) seizure safety;
(7) techniques for:
(A) lifting;
(B) positioning; and
(C) movement and mobility;
(8) working with aging residents and clients;
(9) assisting residents and clients:
(A) who have a visual impairment;
(B) who have a hearing deficit; or
(C) who require the use of adaptive devices and
specialized equipment;
(10) communicating with residents and clients who use
augmentative and alternative devices for communication;
(11) assisting residents and clients with personal
hygiene;
(12) recognizing appropriate food textures;
(13) using proper feeding techniques to assist
residents and clients with meals; and
(14) physical and nutritional management plans.
Sec. 555.025. VIDEO SURVEILLANCE. (a) In this section,
"private space" means a place in a state developmental center or the
ICF-MR component of the Rio Grande State Center in which a resident
or client has a reasonable expectation of privacy, including:
(1) a bedroom;
(2) a bathroom;
(3) a place in which a resident or client receives
medical or nursing services;
(4) a place in which a resident or client meets
privately with visitors; or
(5) a place in which a resident or client privately
makes phone calls.
(b) The department may install and operate video
surveillance equipment in a state developmental center or the
ICF-MR component of the Rio Grande State Center for the purpose of
detecting and preventing the exploitation or abuse of residents and
clients.
(c) The department may not install or operate video
surveillance equipment in a private space or in a location in which
video surveillance equipment can capture images within a private
space.
(d) The department shall ensure the use of video
surveillance equipment under this section complies with federal
requirements for ICF-MR certification.
Sec. 555.026. MORTALITY REVIEW. (a) The executive
commissioner shall establish an independent mortality review
system to review the death of a person who, at the time of the
person's death, was a resident or client.
(b) A review under this section shall be conducted in
addition to any review conducted by the state developmental center
or the Rio Grande State Center.
(c) The executive commissioner shall contract with a
patient safety organization certified in accordance with 42 C.F.R.
Part 3, as effective on January 20, 2009, to conduct independent
mortality reviews required by this section. The contract must
require the patient safety organization to conduct an independent
mortality review using a team consisting of:
(1) a physician with expertise regarding the medical
treatment of individuals with mental retardation;
(2) a registered nurse with expertise regarding the
medical treatment of individuals with mental retardation;
(3) a clinician or other professional with expertise
in the delivery of services and supports for individuals with
mental retardation; and
(4) any other appropriate person as provided by the
executive commissioner.
(d) A patient safety organization that performs an
independent mortality review shall submit to the department, the
office of independent ombudsman, and the commission's office of
inspector general a report of the findings of the mortality review.
(e) The department may use information from a mortality
review report only to advance statewide practices regarding the
treatment and care of individuals with mental retardation or other
disabilities.
(f) The department may release a summary or a statistical
compilation of data drawn from reports submitted under this section
only if the summary or statistical compilation does not contain
information that would permit the identification of an individual.
[Sections 555.027-555.050 reserved for expansion]
SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE
DEVELOPMENTAL CENTERS
Sec. 555.051. ESTABLISHMENT; PURPOSE. The office of
independent ombudsman is established for the purpose of
investigating, evaluating, and securing the rights of the residents
and clients of state developmental centers. The office is
administratively attached to the department. The department shall
provide administrative support and resources to the office as
necessary for the office to perform its duties.
Sec. 555.052. INDEPENDENCE. The independent ombudsman in
the performance of the ombudsman's duties and powers under this
subchapter acts independently of the department.
Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. The
governor shall appoint the independent ombudsman.
Sec. 555.054. ASSISTANT OMBUDSMEN. The independent
ombudsman shall:
(1) hire assistant ombudsmen to perform, under the
direction of the independent ombudsman, the same duties and
exercise the same powers as the independent ombudsman; and
(2) station an assistant ombudsman at each state
developmental center.
Sec. 555.055. CONFLICT OF INTEREST. A person may not serve
as independent ombudsman or as an assistant ombudsman if the person
or the person's spouse:
(1) is employed by or participates in the management
of a business entity or other organization receiving funds from the
department;
(2) owns or controls, directly or indirectly, any
interest in a business entity or other organization receiving funds
from the department; or
(3) is required to register as a lobbyist under
Chapter 305, Government Code, because of the person's activities or
compensation on behalf of a profession related to the operation of
the department.
Sec. 555.056. REPORT. (a) The independent ombudsman shall
submit on a biannual basis to the governor, the lieutenant
governor, and the speaker of the house of representatives a report
that is both aggregated and disaggregated by individual state
developmental center and describes:
(1) the work of the independent ombudsman;
(2) the results of any review or investigation
undertaken by the independent ombudsman, including reviews or
investigation of services contracted by the department; and
(3) any recommendations that the independent
ombudsman has in relation to the duties of the independent
ombudsman.
(b) The independent ombudsman shall ensure that information
submitted in a report under Subsection (a) does not permit the
identification of an individual.
(c) The independent ombudsman shall immediately report to
the governor, lieutenant governor, and speaker of the house of
representatives any particularly serious or flagrant:
(1) case of abuse or injury of a resident or client
about which the independent ombudsman is made aware;
(2) problem concerning the administration of a state
developmental center program or operation; or
(3) interference by a state developmental center, the
department, or the commission with an investigation conducted by
the independent ombudsman.
Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The
department shall allow any resident or client, authorized
representative of a resident or client, family member of a resident
or client, or other interested party to communicate with the
independent ombudsman or an assistant ombudsman. The
communication:
(1) may be in person, by mail, or by any other means;
and
(2) is confidential and privileged.
(b) The records of the independent ombudsman are
confidential, except that the independent ombudsman shall:
(1) share with the Department of Family and Protective
Services a communication that may involve the abuse, neglect, or
exploitation of a resident or client;
(2) share with the regulatory services division of the
department a communication that may involve a violation of an
ICF-MR standard or condition of participation; and
(3) disclose the ombudsman's nonprivileged records if
required by a court order on a showing of good cause.
(c) The independent ombudsman may make reports relating to
an investigation public after the investigation is complete but
only if the name and any other personally identifiable information
of a resident or client, authorized representative of a resident or
client, family member of a resident or client, state developmental
center, and state developmental center employee are redacted from
the report and remain confidential.
(d) The name, address, or other personally identifiable
information of a person who files a complaint with the office of
independent ombudsman, information generated by the office of
independent ombudsman in the course of an investigation, and
confidential records obtained by the office of independent
ombudsman are confidential and not subject to disclosure under
Chapter 552, Government Code, except as provided by this section.
Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The
independent ombudsman shall promote awareness among the public,
residents, clients, and state developmental center employees of:
(1) how the office may be contacted;
(2) the purpose of the office; and
(3) the services the office provides.
Sec. 555.059. DUTIES AND POWERS. (a) The independent
ombudsman shall:
(1) evaluate the delivery of services to residents and
clients to ensure that the rights of residents and clients are fully
observed;
(2) refer a complaint alleging the abuse, neglect, or
exploitation of a resident or client to the Department of Family and
Protective Services for investigation;
(3) refer a complaint alleging a possible violation of
an ICF-MR standard or condition of participation to the regulatory
services division of the department;
(4) refer a complaint alleging a criminal offense,
other than an allegation of abuse, neglect, or exploitation of a
resident or client, to the commission's office of inspector
general;
(5) conduct investigations of complaints, other than
complaints alleging criminal offenses or the abuse, neglect, or
exploitation of a resident or client, if the office determines
that:
(A) a resident or client or the resident's or
client's family may be in need of assistance from the office; or
(B) a complaint raises the possibility of a
systemic issue in the state developmental center's provision of
services;
(6) conduct an annual audit of each state
developmental center's policies, practices, and procedures to
ensure that each resident and client is encouraged to exercise the
resident's or client's rights, including:
(A) the right to file a complaint; and
(B) the right to due process;
(7) prepare and deliver an annual report regarding the
findings of each audit to the:
(A) executive commissioner;
(B) commissioner;
(C) Aging and Disability Services Council;
(D) governor;
(E) lieutenant governor;
(F) speaker of the house of representatives;
(G) standing committees of the senate and house
of representatives with primary jurisdiction over state
developmental centers; and
(H) state auditor;
(8) require a state developmental center to provide
access to all records, data, and other information under the
control of the center that the independent ombudsman determines is
necessary to investigate a complaint or to conduct an audit under
this section;
(9) review all final reports produced by the
Department of Family and Protective Services and the regulatory
services division of the department regarding a complaint referred
by the independent ombudsman;
(10) provide assistance to a resident, client,
authorized representative of a resident or client, or family member
of a resident or client who the independent ombudsman determines is
in need of assistance, including advocating with an agency,
provider, or other person in the best interests of the resident or
client; and
(11) make appropriate referrals under any of the
duties and powers listed in this subsection.
(b) The independent ombudsman may apprise a person who is
interested in a resident's or client's welfare of the rights of the
resident or client.
(c) To assess whether a resident's or client's rights have
been violated, the independent ombudsman may, in any matter that
does not involve an alleged criminal offense or the abuse, neglect,
or exploitation of a resident or client, contact or consult with an
administrator, employee, resident, client, family member of a
resident or client, expert, or other individual in the course of the
investigation or to secure information.
(d) Notwithstanding any other provision of this chapter,
the independent ombudsman may not investigate an alleged criminal
offense or the alleged abuse, neglect, or exploitation of a
resident or client. The independent ombudsman shall refer an
allegation of abuse, neglect, or exploitation of a resident or
client to the Department of Family and Protective Services.
Sec. 555.060. RETALIATION PROHIBITED. The department or a
state developmental center may not retaliate against a department
employee or state developmental center employee who in good faith
makes a complaint to the office of independent ombudsman or
cooperates with the office in an investigation.
Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall
establish a permanent, toll-free number for the purpose of
receiving any information concerning the violation of a right of a
resident or client.
(b) The office shall ensure that:
(1) the toll-free number is prominently displayed in
the main administration area of a state developmental center and in
each room in which a resident lives or a client receives services;
and
(2) a resident, a client, the authorized
representative of a resident, and a state developmental center
employee have confidential access to a telephone for the purpose of
calling the toll-free number.
SECTION 16. Section 591.003, Health and Safety Code, is
amended by adding Subdivision (19-a) to read as follows:
(19-a) "State developmental center" has the meaning
provided by Section 531.002.
SECTION 17. Section 593.042, Health and Safety Code, is
amended by adding Subsection (c) to read as follows:
(c) An application for commitment of a person to a
residential care facility that is a state developmental center must
include a statement demonstrating that the proposed resident meets
the requirements for commitment to a state developmental center
under Section 593.052(a-1).
SECTION 18. Section 593.052, Health and Safety Code, is
amended by amending Subsections (a) and (b) and adding Subsections
(a-1) and (b-1) to read as follows:
(a) A proposed resident may not be committed to a
residential care facility unless:
(1) the proposed resident is a person with mental
retardation;
(2) evidence is presented showing that because of
retardation, the proposed resident:
(A) represents a substantial risk of physical
impairment or injury to himself or others; or
(B) is unable to provide for and is not providing
for the proposed resident's most basic personal physical needs;
(3) the proposed resident cannot be adequately and
appropriately habilitated in an available, less restrictive
setting; and
(4) the residential care facility:
(A) provides habilitative services, care,
training, and treatment appropriate to the proposed resident's
needs; and
(B) is not a state developmental center.
(a-1) A proposed resident may not be committed to a
residential care facility that is a state developmental center
unless:
(1) the proposed resident is a person with:
(A) severe or profound mental retardation; or
(B) mild or moderate mental retardation who:
(i) has extraordinary medical needs; or
(ii) exhibits dangerous behavior that
represents a substantial risk of physical impairment or injury to
self or others;
(2) evidence is presented showing that the proposed
resident:
(A) represents a substantial risk of physical
impairment or injury to self or others; or
(B) is unable to provide for and is not providing
for the proposed resident's most basic personal physical needs;
(3) the proposed resident cannot be adequately and
appropriately habilitated in an available, less restrictive
setting; and
(4) the residential care facility is a state
developmental center that provides habilitative services, care,
training, and treatment appropriate to the proposed resident's
needs.
(b) If it is determined that the requirements of Subsection
(a) have been met and that long-term placement in a residential care
facility, other than a state developmental center, is appropriate,
the court shall commit the proposed resident for care, treatment,
and training to a community center or the Department of Aging and
Disability Services [department] when space is available in a
residential care facility, other than a state developmental center.
(b-1) If it is determined that the requirements of
Subsection (a-1) have been met and that long-term placement in a
residential care facility that is a state developmental center is
appropriate, the court shall commit the proposed resident for care,
treatment, and training to the Department of Aging and Disability
Services when space is available in a state developmental center.
SECTION 19. Section 48.252, Human Resources Code, is
amended by adding Subsection (d) to read as follows:
(d) If an investigation under this section reveals evidence
of the abuse, neglect, or exploitation of a resident or client of a
state developmental center as defined by Section 531.002, Health
and Safety Code, or the ICF-MR component of the Rio Grande State
Center, and a caseworker of the department or a supervisor of a
caseworker believes that the abuse, neglect, or exploitation is a
criminal offense, the caseworker or supervisor shall immediately
notify the Health and Human Services Commission's office of
inspector general and promptly provide the Health and Human
Services Commission's office of inspector general with a copy of
the department's investigation report.
SECTION 20. Subchapter G, Chapter 48, Human Resources Code,
is amended by adding Section 48.3015 to read as follows:
Sec. 48.3015. INVESTIGATION OF REPORTS IN ICF-MR. (a)
Notwithstanding Section 48.301, the department shall receive and
investigate reports of abuse, neglect, or exploitation of an
individual with a disability receiving services in an intermediate
care facility for the mentally retarded.
(b) The executive commissioner shall adopt rules governing
investigations conducted under this section and the provision of
services as necessary to alleviate abuse, neglect, or exploitation.
SECTION 21. Section 161.071, Human Resources Code, is
amended to read as follows:
Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
department is responsible for administering human services
programs for the aging and disabled, including:
(1) administering and coordinating programs to
provide community-based care and support services to promote
independent living for populations that would otherwise be
institutionalized;
(2) providing institutional care services, including
services through convalescent and nursing homes and related
institutions under Chapter 242, Health and Safety Code;
(3) providing and coordinating programs and services
for persons with disabilities, including programs for the
treatment, rehabilitation, or benefit of persons with
developmental disabilities or mental retardation;
(4) operating state facilities for the housing,
treatment, rehabilitation, or benefit of persons with
disabilities, including state schools for persons with mental
retardation;
(5) serving as the state unit on aging required by the
federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
and its subsequent amendments, including performing the general
functions under Section 101.022 to ensure:
(A) implementation of the federal Older
Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
subsequent amendments, including implementation of services and
volunteer opportunities under that Act for older residents of this
state through area agencies on aging;
(B) advocacy for residents of nursing facilities
through the office of the state long-term care ombudsman;
(C) fostering of the state and community
infrastructure and capacity to serve older residents of this state;
and
(D) availability of a comprehensive resource for
state government and the public on trends related to and services
and programs for an aging population;
(6) performing all licensing and enforcement
activities and functions related to long-term care facilities,
including licensing and enforcement activities related to
convalescent and nursing homes and related institutions under
Chapter 242, Health and Safety Code;
(7) performing all licensing and enforcement
activities related to assisted living facilities under Chapter 247,
Health and Safety Code;
(8) performing all licensing and enforcement
activities related to intermediate care facilities for persons with
mental retardation under Chapter 252, Health and Safety Code, other
than investigations of reported abuse, neglect, or exploitation;
(9) performing all licensing and enforcement
activities and functions related to home and community support
services agencies under Chapter 142, Health and Safety Code; and
(10) serving as guardian of the person or estate, or
both, for an incapacitated individual as provided by Subchapter E
of this chapter and Chapter XIII, Texas Probate Code.
SECTION 22. Subchapter D, Chapter 161, Human Resources
Code, is amended by adding Section 161.076 to read as follows:
Sec. 161.076. ON-SITE SURVEYS OF CERTAIN PROVIDERS. At
least every 12 months, the department shall conduct an on-site
survey in each group or foster home at which a home and
community-based services provider provides services to a person
with mental retardation. The department shall conduct the survey
in a manner consistent with surveys conducted by the department
under Section 142.009, Health and Safety Code.
SECTION 23. (a) Not later than December 1, 2009, the Health
and Human Services Commission's office of inspector general shall
begin employing and commissioning peace officers as required by
Section 531.1022, Government Code, as added by this Act.
(b) Not later than September 1, 2014, the Department of
Aging and Disability Services shall designate a state developmental
center for alleged offender residents as required by Section
555.002, Health and Safety Code, as added by this Act.
(c) Not later than January 1, 2010, the Department of Aging
and Disability Services shall develop the training required by
Section 555.024, Health and Safety Code, as added by this Act.
(d) The Department of Aging and Disability Services shall
ensure that all center employees and direct care employees receive
the training required by Section 555.024, Health and Safety Code,
as added by this Act, regardless of when the employee was hired, not
later than September 1, 2010.
(e) Not later than December 1, 2009, the executive
commissioner of the Health and Human Services Commission shall
adopt rules as required by Section 555.022, Health and Safety Code,
as added by this Act.
(f) Not later than December 1, 2009, the executive
commissioner shall contract for mortality review services as
required by Section 555.026, Health and Safety Code, as added by
this Act.
(g) Not later than December 1, 2009, the governor shall
appoint the independent ombudsman as required by Section 555.053,
Health and Safety Code, as added by this Act.
SECTION 24. (a) Section 411.1144, Government Code, as
added by this Act, and Section 555.021, Health and Safety Code, as
added by this Act, apply only to background and criminal history
checks performed on or after the effective date of this Act.
(b) Not later than December 1, 2009, the executive
commissioner of the Health and Human Services Commission shall
adopt rules as required by Section 555.021, Health and Safety Code,
as added by this Act.
SECTION 25. (a) The change in law made by Section
551.022(e), Health and Safety Code, as added by this Act, and the
change in law made by Section 551.0225, Health and Safety Code, as
added by this Act, apply to the dismissal of an officer, teacher, or
other employee of a state developmental center hired on or after the
effective date of this Act.
(b) The dismissal of an officer, teacher, or other employee
of a state developmental center hired before the effective date of
this Act is governed by the law in effect when the officer, teacher,
or other employee was hired, and the former law is continued in
effect for that purpose.
SECTION 26. (a) Sections 593.042 and 593.052, Health and
Safety Code, as amended by this Act, apply only to an order for
commitment to a residential care facility based on an application
filed on or after the effective date of this Act.
(b) An order for commitment to a residential care facility
based on an application filed before the effective date of this Act
is governed by the law in effect at the time the application was
filed, and the former law is continued in effect for that purpose.
SECTION 27. This Act applies only to a report of suspected
abuse, neglect, or exploitation that is made on or after September
1, 2009. A report of suspected abuse, neglect, or exploitation that
is made before September 1, 2009, is governed by the law in effect
on the date the report was made, and that law is continued in effect
for that purpose.
SECTION 28. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 29. The changes in law made by this Act in amending
Chapter 252, Health and Safety Code, and Section 161.071, Human
Resources Code, and adding Sections 48.3015 and 161.076, Human
Resources Code, take effect September 1, 2009.
SECTION 30. Except as provided by Section 29 of this Act,
this Act takes effect immediately if it receives a vote of
two-thirds of all the members elected to each house, as provided by
Section 39, Article III, Texas Constitution. If this Act does not
receive the vote necessary for immediate effect, this Act takes
effect September 1, 2009.