Texas 2009 - 81st Regular

Texas House Bill HB4691 Compare Versions

Only one version of the bill is available at this time.

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1	1	By: Coleman H.B. No. 4691
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the protection and care of individuals requiring long
7	7	term care services and supports.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. The Legislature recognizes that the state has a
10	10	responsibility to ensure that individuals requiring long term care
11	11	have the highest quality of care available and must be kept safe
12	12	from abuse, neglect and exploitation.
13	13	SECTION 2. The Legislature recognizes the importance of
14	14	ensuring quality care for individual requiring long term care
15	15	services in state developmental centers and other settings.
16	16	SECTION 3. Section 261.404, Family Code, is amended by
17	17	adding Subsection (b-1) to read as follows:
18	18	(b-1) If an investigation under this section reveals
19	19	evidence of abuse, neglect, or exploitation of a resident or client
20	20	of a state developmental center as defined by Section 531.002,
21	21	Health and Safety Code, the ICF-MR component of the Rio Grande State
22	22	Center, or a non-state operated ICF-MR's and a caseworker of the
23	23	department or a supervisor of a caseworker knows of the abuse,
24	24	neglect, or exploitation is a criminal offense, the caseworker or
25	25	supervisor shall immediately notify the Health and Human Services
26	26	Commission's office of inspector general and promptly provide the
27	27	Health and Human Services Commission's office of inspector general
28	28	with a copy of the department's investigation report.
29	29	SECTION 4. Subchapter F, Chapter 411, Government Code, is
30	30	amended by adding Section 411.1144 to read as follows:
31	31	Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD
32	32	INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS AT STATE
33	33	DEVELOPMENTAL CENTERS. (a) The Department of State Health
34	34	Services and the Department of Aging and Disability Services are
35	35	authorized to obtain from the department criminal history record
36	36	information maintained by the department that relates to a person:
37	37	(1) who is:
38	38	(A) an applicant for employment with the agency;
39	39	(B) an employee of the agency;
40	40	(C) a volunteer with the agency; or
41	41	(D) an applicant for a volunteer position with
42	42	the agency; and
43	43	(2) who would be placed in direct contact with a
44	44	resident or client of a state developmental center the ICF-MR
45	45	component of the Rio Grande State Center, or a non-state operated
46	46	ICF-MR's.
47	47	(b) Criminal history record information obtained by an
48	48	agency under Subsection (a) may not be released or disclosed to any
49	49	person except:
50	50	(1) on court order;
51	51	(2) with the consent of the person who is the subject
52	52	of the criminal history record information;
53	53	(3) for purposes of an administrative hearing held by
54	54	the agency concerning the person who is the subject of the criminal
55	55	history record information; or
56	56	(4) as provided by Subsection (c).
57	57	(c) An agency is not prohibited from releasing criminal
58	58	history record information obtained under Subsection (a) or (d) to
59	59	the person who is the subject of the criminal history record
60	60	information.
61	61	(d) Subject to Section 411.087, the Department of State
62	62	Health Services and the Department of Aging and Disability Services
63	63	are authorize to:
64	64	(1) obtain through the Federal Bureau of Investigation
65	65	criminal history record information maintained or indexed by that
66	66	bureau that pertains to a person described by Subsection (a);
67	67	(2) obtain from any other criminal justice agency in
68	68	this state criminal history record information maintained by that
69	69	criminal justice agency that relates to a person described by
70	70	Subsection (a); and
71	71	(3) obtain from any licensing board in this state
72	72	disciplinary information maintained by that licensing board that
73	73	relates to a person described by section (a).
74	74	SECTION 5. Subchapter B, Chapter 531, Government Code, is
75	75	amended by adding Section 531.02446 to read as follows:
76	76	Sec. 531.02446. SAFETY NET FOR COMMUNITY SERVICES. (a) In
77	77	this section, "state developmental center" has the meaning assigned
78	78	by Section 531.002, Health and Safety Code.
79	79	(b) The executive commissioner by rule shall develop safety
80	80	net protocols to prevent individuals with mental retardation
81	81	receiving services in the community from being placed in a state
82	82	developmental center in an emergency situation who after receiving
83	83	emergency care expects to return to community care.
84	84	(c) The executive commissioner shall ensure that the safety
85	85	net protocols are designed to provide for temporary, emergency
86	86	living arrangements for individuals at immediate risk of commitment
87	87	to a state developmental center.
88	88	SECTION 6. Subchapter C, Chapter 531, Government Code, is
89	89	amended by adding Section 531.1022 to read as follows:
90	90	Sec. 531.1022. ASSISTING CERTAIN INVESTIGATIONS BY LAW
91	91	ENFORCEMENT. (a) The office of inspector general shall employ and
92	92	commission peace officers for the sole purpose of assisting a state
93	93	or local law enforcement agency in the investigation of an alleged
94	94	criminal offense involving a resident or client of a state
95	95	developmental center as defined by Section 531.002, Health and
96	96	Safety Code, the ICF-MR component of the Rio Grande State Center, or
97	97	a non-state operated ICF-MR's. A peace officer employed and
98	98	commissioned by the office is a peace officer for purposes of
99	99	Article 2.12, Code of Criminal Procedure.
100	100	(b) The office of inspector general shall prepare a final
101	101	report for each investigation conducted under this section. The
102	102	office shall ensure that the report does not contain identifying
103	103	information of an individual mentioned in the report. The final
104	104	report must include:
105	105	(1) a summary of the activities performed by the
106	106	office of inspector general in conducting the investigation;
107	107	(2) a statement regarding whether the investigation
108	108	resulted in a finding that an alleged criminal offense was
109	109	committed; and
110	110	(3) a description of the alleged criminal offense that
111	111	was committed.
112	112	(c) The office of inspector general shall deliver the final
113	113	report to the:
114	114	(1) executive commissioner;
115	115	(2) commissioner of the Department of Aging and
116	116	Disability Services;
117	117	(3) commissioner of the Department of Family and
118	118	Protective Services;
119	119	(4) Aging and Disability Services Council;
120	120	(5) governor;
121	121	(6) lieutenant governor;
122	122	(7) speaker of the house of representatives;
123	123	(8) standing committees of the senate and house of
124	124	representatives with primary jurisdiction over state developmental
125	125	centers; and
126	126	(9) state auditor.
127	127	(d) A final report regarding an investigation is subject to
128	128	required disclosure under Chapter 552. All information and
129	129	materials compiled by the office of inspector general in connection
130	130	with an investigation are confidential, and not subject to
131	131	disclosure under Chapter 552, and not subject to disclosure,
132	132	discovery, subpoena, or other means of legal compulsion for their
133	133	release to anyone other than the office or its employees or agents
134	134	involved in the investigation conducted by the office, except that
135	135	this information may be disclosed to the office of the attorney
136	136	general, the state auditor's office, and law enforcement agencies.
137	137	(e) The office of inspector general shall prepare an annual
138	138	status report of its activities under this section. The annual
139	139	report may not contain identifying information of an individual
140	140	mentioned in the report. The annual status report must include
141	141	information that is aggregated and disaggregated by individual
142	142	state developmental center the ICF-MR component of the Rio Grande
143	143	State Center, or a non-state operated ICF-MR's regarding:
144	144	(1) the number and type of alleged offenses
145	145	investigated by the office;
146	146	(2) the number and type of alleged offenses involving
147	147	an employee of a state developmental center the ICF-MR component of
148	148	the Rio Grande State Center, or a non-state operated ICF-MR's;
149	149	(3) the relationship of an alleged victim to an
150	150	alleged perpetrator; and
151	151	(4) the number of investigations conducted that
152	152	involve the suicide, death, or hospitalization of an alleged
153	153	victim.
154	154	(f) The office of inspector general shall submit the annual
155	155	status report to the:
156	156	(1) executive commissioner;
157	157	(2) commissioner of the Department of Aging and
158	158	Disability Services;
159	159	(3) commissioner of the Department of Family and
160	160	Protective Services;
161	161	(4) Aging and Disability Services Council;
162	162	(5) Family and Protective Services Council;
163	163	(6) governor;
164	164	(7) lieutenant governor;
165	165	(8) speaker of the house of representatives;
166	166	(9) standing committees of the senate and house of
167	167	representatives with primary jurisdiction over state developmental
168	168	centers;
169	169	(10) state auditor; and
170	170	(11) comptroller.
171	171	(g) An annual status report submitted under this section is
172	172	public information under Chapter 552.
173	173	SECTION 7. Section 252.122(a), Health and Safety Code, is
174	174	amended to read as follows:
175	175	(a) A person, including an owner or employee of a facility,
176	176	who has cause to believe that the physical or mental health or
177	177	welfare of a resident has been or may be adversely affected by abuse
178	178	or neglect caused by another person shall report the abuse or
179	179	neglect to the Department of Family and Protective Services
180	180	[department], to a designated agency, or to both the Department of
181	181	Family and Protective Services [department] and the designated
182	182	agency, as specified in [department] rules adopted by the
183	183	Department of Family and Protective Services.
184	184	SECTION 8. Section 252.124(b), Health and Safety Code, is
185	185	amended to read as follows:
186	186	(b) A local or state law enforcement agency that receives a
187	187	report of abuse or neglect shall refer the report to the Department
188	188	of Family and Protective Services [department] or the designated
189	189	agency.
190	190	SECTION 9. Sections 252.125(a), (c), (d), (e), (f), and
191	191	(g), Health and Safety Code, are amended to read as follows:
192	192	(a) The Department of Family and Protective Services
193	193	[department] or the designated agency shall make a thorough
194	194	investigation promptly after receiving either the oral or written
195	195	report.
196	196	(c) In the investigation, the Department of Family and
197	197	Protective Services [department] or the designated agency shall
198	198	determine:
199	199	(1) the nature, extent, and cause of the abuse or
200	200	neglect;
201	201	(2) the identity of the person responsible for the
202	202	abuse [or], neglect, or exploitation;
203	203	(3) the names and conditions of the other residents;
204	204	(4) an evaluation of the persons responsible for the
205	205	care of the residents;
206	206	(5) the adequacy of the facility environment; and
207	207	(6) any other information required by the Department
208	208	of Family and Protective Services [department].
209	209	(d) The investigation may include a visit to the
210	210	resident's facility and an interview with the resident, if
211	211	considered appropriate by the Department of Family and Protective
212	212	Services [department].
213	213	(e) If the Department of Family and Protective Services
214	214	[department] attempts to carry out an on-site investigation and it
215	215	is shown that admission to the facility or any place where a
216	216	resident is located cannot be obtained, a probate or county court
217	217	shall order the person responsible for the care of the resident or
218	218	the person in charge of a place where the resident is located to
219	219	allow admission for the investigation and any interview with the
220	220	resident.
221	221	(f) Before the completion of the investigation, the
222	222	Department of Family and Protective Services [department] shall
223	223	file a petition for temporary care and protection of the resident if
224	224	the Department of Family and Protective Services [department]
225	225	determines that immediate removal is necessary to protect the
226	226	resident from further abuse [or], neglect, or exploitation.
227	227	(g) The Department of Family and Protective Services
228	228	[department] or the designated agency shall make a complete written
229	229	report of the investigation and submit the report and its
230	230	recommendations to the district attorney and the appropriate law
231	231	enforcement agency and, if necessary, to the Department of Family
232	232	and Protective Services [department] on the Department of Family
233	233	and Protective Services' [department's] request.
234	234	SECTION 10. Section 252.126, Health and Safety Code, is
235	235	amended to read as follows:
236	236	Sec. 252.126. CONFIDENTIALITY. A report, record, or
237	237	working paper used or developed in an investigation made under this
238	238	subchapter is confidential and may be disclosed only for purposes
239	239	consistent with the rules adopted by the executive commissioner of
240	240	the Health and Human Services Commission [board] or the designated
241	241	agency.
242	242	SECTION 11. Section 252.129, Health and Safety Code, is
243	243	amended by adding Subsection (d) to read as follows:
244	244	(d) The department and the Department of Family and
245	245	Protective Services shall cooperate to ensure that the central
246	246	registry required by this section accurately includes reported
247	247	cases of resident abuse and neglect.
248	248	SECTION 12. Sections 252.134(a), (b), (c), (d), and (e),
249	249	Health and Safety Code, are amended to read as follows:
250	250	(a) A facility licensed under this chapter shall submit a
251	251	report to the Department of Family and Protective Services
252	252	[department] concerning the death of:
253	253	(1) a resident of the facility; and
254	254	(2) a former resident that occurs [24] 72 hours or less
255	255	after the former resident is transferred from the facility to a
256	256	hospital.
257	257	(b) The report must be submitted not later than the 10th
258	258	working day after the last day of each month in which a resident of
259	259	the facility dies. The facility must make the report on a form
260	260	prescribed by the Department of Family and Protective Services
261	261	[department]. The report must contain the name and social security
262	262	number of the deceased.
263	263	(c) The Department of Family and Protective Services
264	264	[department] shall correlate reports under this section with death
265	265	certificate information to develop data relating to the:
266	266	(1) name and age of the deceased;
267	267	(2) official cause of death listed on the death
268	268	certificate;
269	269	(3) date, time, and place of death; and
270	270	(4) name and address of the facility in which the
271	271	deceased resided.
272	272	(d) Unless specified by rules adopted by the executive
273	273	commissioner of the Health and Human Services Commission [board
274	274	rule], a record under this section is confidential and not subject
275	275	to the provisions of Chapter 552, Government Code.
276	276	(e) The Department of Family and Protective Services
277	277	[department] shall develop statistical information on official
278	278	causes of death to determine patterns and trends of incidents of
279	279	death among persons with mental retardation and related conditions
280	280	and in specific facilities. Information developed under this
281	281	subsection is not confidential.
282	282	SECTION 13. Section 531.002(17), Health and Safety Code, is
283	283	amended to read as follows:
284	284	(17) "State developmental center [school]" means a
285	285	state-supported and structured residential facility operated by
286	286	the Department of Aging and Disability Services [department] to
287	287	provide to clients with mental retardation a variety of services,
288	288	including medical treatment, specialized therapy, and training in
289	289	the acquisition of personal, social, and vocational skills.
290	290	SECTION 14. Chapter 531, Health and Safety Code, is amended
291	291	by adding Section 531.0021 to read as follows:
292	292	Sec. 531.0021. REFERENCE TO STATE SCHOOL OR SUPERINTENDENT.
293	293	(a) A reference in law to a "state school" means a state
294	294	developmental center.
295	295	(b) A reference in law to a "superintendent," to the extent
296	296	the term is intended to refer to the person in charge of a state
297	297	developmental center, means the director of a state developmental
298	298	center.
299	299	SECTION 15. Section 532.001(b), Health and Safety Code, is
300	300	amended to read as follows:
301	301	(b) The department also includes community services
302	302	operated by the department and the following facilities:
303	303	(1) the central office of the department;
304	304	(2) the Austin State Hospital;
305	305	(3) the Big Spring State Hospital;
306	306	(4) the Kerrville State Hospital;
307	307	(5) the Rusk State Hospital;
308	308	(6) the San Antonio State Hospital;
309	309	(7) the Terrell State Hospital;
310	310	(8) the North Texas State Hospital;
311	311	(9) the Abilene State Developmental Center [School];
312	312	(10) the Austin State Developmental Center [School];
313	313	(11) the Brenham State Developmental Center [School];
314	314	(12) the Corpus Christi State Developmental Center
315	315	[School];
316	316	(13) the Denton State Developmental Center [School];
317	317	(14) the Lubbock State Developmental Center [School];
318	318	(15) the Lufkin State Developmental Center [School];;
319	319	(16) the Mexia State Developmental Center [School];
320	320	(17) the Richmond State Developmental Center
321	321	[School];
322	322	(18) the San Angelo State Developmental Center
323	323	[School];
324	324	(19) the San Antonio State Developmental Center
325	325	[School];
326	326	(20) the El Paso State Developmental Center;
327	327	(21) the Rio Grande State Center; and
328	328	(22) the Waco Center for Youth.
329	329	SECTION 16. Section 551.022, Health and Safety Code, is
330	330	amended by adding Subsection (e) to read as follows:
331	331	(e) This section does not apply to a state developmental
332	332	center or the director of a state developmental center.
333	333	SECTION 17. Subchapter B, Chapter 551, Health and Safety
334	334	Code, is amended by adding Section 551.0225 to read as follows:
335	335	Sec. 551.0225. POWERS AND DUTIES OF STATE DEVELOPMENTAL
336	336	CENTER DIRECTOR. (a) The director of a state developmental center
337	337	is the administrative head of the center.
338	338	(b) The director of a state developmental center has the
339	339	custody of and responsibility to care for the buildings, grounds,
340	340	furniture, and other property relating to the center.
341	341	(c) The director of a state developmental center shall:
342	342	(1) oversee the admission and discharge of residents
343	343	and clients;
344	344	(2) keep a register of all residents and clients
345	345	admitted to or discharged from the center;
346	346	(3) supervise repairs and improvements to the center;
347	347	(4) ensure that center money is spent judiciously and
348	348	economically;
349	349	(5) keep an accurate and detailed account of all money
350	350	received and spent, stating the source of the money and on whom and
351	351	the purpose for which the money is spent;
352	352	(6) keep a full record of the center's operations; and
353	353	(7) work to:
354	354	(i) reduce the turnover rate of the center
355	355	employees;
356	356	(ii) develop and implement a training and
357	357	continuing education program for the center employees; and
358	358	(iii) reduce incidences of abuse, neglect
359	359	and exploitation of residents and clients.
360	360	(d) In accordance with departmental rules and operating
361	361	procedures, the director of a state developmental center shall:
362	362	(1) establish policy to govern the state developmental
363	363	center that the director considers will best promote the residents'
364	364	interest and welfare;
365	365	(2) hire subordinate officers, teachers, and other
366	366	employees and set their salaries, in the absence of other law; and
367	367	(3) dismiss a subordinate officer, teacher, or
368	368	employee.
369	369	SECTION 18. Subtitle B, Title 7, Health and Safety Code, is
370	370	amended by adding Chapter 555 to read as follows:
371	371	CHAPTER 555. STATE DEVELOPMENTAL CENTERS
372	372	SUBCHAPTER A. GENERAL PROVISIONS
373	373	Sec. 555.001. DEFINITIONS. In this chapter:
374	374	(1) "Alleged offender resident" means a person who:
375	375	(A) was committed to or transferred to a state
376	376	developmental center under Chapter 46B or 46C, Code of Criminal
377	377	Procedure, as a result of being charged with or convicted of an
378	378	offense listed in Paragraph (D);
379	379	(B) is a child committed to or transferred to a
380	380	state developmental center under Chapter 55, Family Code, as a
381	381	result of being alleged by petition or having been found to have
382	382	engaged in delinquent conduct constituting an offense listed in
383	383	Paragraph (D);
384	384	(C) has inflicted, attempted to inflict, or made
385	385	a serious threat of inflicting substantial physical harm to the
386	386	resident's self or to another while committed to a state
387	387	developmental center; or
388	388	(D) has been convicted of or charged with any of
389	389	the following offenses:
390	390	(i) an offense under Chapter 19, Penal Code
391	391	(criminal homicide);
392	392	(ii) an offense under Chapter 20, Penal
393	393	Code (kidnapping and unlawful restraint);
394	394	(iii) an offense under Section 21.02, Penal
395	395	Code (continuous sexual abuse of young child or children);
396	396	(iv) an offense under Section 22.011, Penal
397	397	Code (sexual assault);
398	398	(v) an offense under Section 22.02, Penal
399	399	Code (aggravated assault);
400	400	(vi) an offense under Section 22.021, Penal
401	401	Code (aggravated sexual assault);
402	402	(vii) an offense under Section 22.04, Penal
403	403	Code (injury to a child, elderly individual, or disabled
404	404	individual);
405	405	(viii) an offense under Section 28.02,
406	406	Penal Code (arson);
407	407	(ix) an offense under Section 29.02, Penal
408	408	Code (robbery);
409	409	(x) an offense under Section 29.03, Penal
410	410	Code (aggravated robbery); or
411	411	(xi) a conviction under the laws of another
412	412	state, federal law, or the Uniform Code of Military Justice for an
413	413	offense containing elements that are substantially similar to the
414	414	elements of an offense listed by this paragraph.
415	415	(2) "Center employee" means an employee of a state
416	416	developmental center the ICF-MR component of the Rio Grande State
417	417	Center, or a non-state operated ICF-MR's.
418	418	(3) "Client" means a person with mental retardation
419	419	who receives ICF-MR services from a state developmental center the
420	420	ICF-MR component of the Rio Grande State Center, or a non-state
421	421	operated ICF-MR's.
422	422	(4) "Commission" means the Health and Human Services
423	423	Commission.
424	424	(5) "Complaint" means information received by the
425	425	office of independent ombudsman regarding a possible violation of a
426	426	right of a resident or client of a state developmental center and
427	427	includes information received regarding a failure by a state
428	428	developmental center to comply with the department's policies and
429	429	procedures relating to the community living options information
430	430	process.
431	431	(6) "Department" means the Department of Aging and
432	432	Disability Services.
433	433	(7) "Direct care employee" means a center employee who
434	434	provides direct delivery of services to a resident or client.
435	435	(8) "Executive commissioner" means the executive
436	436	commissioner of the Health and Human Services Commission.
437	437	(9) "Independent ombudsman" means the individual who
438	438	has been appointed to the office of independent ombudsman.
439	439	(10) "Office" means the office of independent
440	440	ombudsman established under Subchapter C.
441	441	(11) "Resident" means a person with mental retardation
442	442	who resides in a state developmental center the ICF-MR component of
443	443	the Rio Grande State Center, or a non-state operated ICF-MR's.
444	444	(12) "State developmental center" has the meaning
445	445	assigned by Section 531.002.
446	446	(13) "State developmental center employee" means an
447	447	employee of a state developmental center.
448	448	Sec. 555.002. STATE DEVELOPMENTAL CENTER FOR ALLEGED
449	449	OFFENDER RESIDENTS. (a) The department shall establish a separate
450	450	state developmental center for the care of alleged offender
451	451	residents apart from other clients and residents. The department
452	452	shall designate an existing state developmental center for this
453	453	purpose.
454	454	(b) In establishing a state developmental center designated
455	455	for alleged offender residents, the department shall:
456	456	(1) transfer an alleged offender resident already
457	457	residing in a state developmental center to the designated state
458	458	developmental center;
459	459	(2) place alleged offender residents in separate homes
460	460	at the designated state developmental center based on whether the
461	461	alleged offender resident is:
462	462	(A) an adult or a person younger than 18 years of
463	463	age; or
464	464	(B) male or female;
465	465	(3) place all alleged offender residents committed to
466	466	or transferred to a state developmental center in the designated
467	467	state developmental center;
468	468	(4) divert future admissions of residents who are not
469	469	alleged offenders from the designated state developmental center;
470	470	and
471	471	(5) provide training regarding the service delivery
472	472	system for alleged offender residents to direct care employees of
473	473	the designated state developmental center.
474	474	(c) Notwithstanding Section 594.014, an alleged offender
475	475	resident who is transferred to the designated state developmental
476	476	center is not entitled to an administrative hearing regarding a
477	477	transfer of the resident.
478	478	(d) The department shall ensure that the designated state
479	479	developmental center complies with the requirements for ICF-MR
480	480	certification under the Medicaid program as appropriate.
481	481	(e) The department shall ensure that the alleged offender
482	482	resident is re-evaluated annually to determine if there placement
483	483	in a separate section of a state developmental center is necessary
484	484	and appropriate with regards to the alleged offenders:
485	485	(i) rehabilitation;
486	486	(ii) danger to others; and
487	487	(iii) civil rights of the alleged offender.
488	488	(f) The department shall ensure that the alleged offender
489	489	population is provided enhanced security and monitoring to ensure
490	490	that each is kept safe from each other.
491	491	[Sections 555.003-555.020 reserved for expansion]
492	492	SUBCHAPTER B. POWERS AND DUTIES
493	493	Sec. 555.021. REQUIRED CRIMINAL HISTORY CHECKS FOR
494	494	EMPLOYEES AND VOLUNTEERS. (a) The department and the Department of
495	495	State Health Services shall perform a state and federal criminal
496	496	history background check on a person:
497	497	(1) who is:
498	498	(A) an applicant for employment with the agency;
499	499	(B) an employee of the agency;
500	500	(C) a volunteer with the agency; or
501	501	(D) an applicant for a volunteer position with
502	502	the agency; and
503	503	(2) who would be placed in direct contact with a
504	504	resident or client of a state developmental center the ICF-MR
505	505	component of the Rio Grande State Center, or a non-state operated
506	506	ICF-MR's.
507	507	(b) The executive commissioner shall adopt rules requiring
508	508	a person described by Subsection (a) to submit fingerprints in a
509	509	form and of a quality acceptable to the Department of Public Safety
510	510	and the Federal Bureau of Investigation for use in conducting a
511	511	criminal history background check.
512	512	(c) Each agency shall obtain electronic updates from the
513	513	Department of Public Safety of arrests and convictions of a person:
514	514	(1) for whom the agency performs a background check
515	515	under Subsection (a); and
516	516	(2) who remains an employee or volunteer of the agency
517	517	and continues to have direct contact with a resident or client.
518	518	Sec. 555.022. DRUG TESTING; POLICY. (a) The executive
519	519	commissioner by rule shall adopt a policy regarding random testing
520	520	and reasonable suspicion testing for the illegal use of drugs by a
521	521	state developmental center employee.
522	522	(b) The director of a state developmental center shall
523	523	enforce the policy adopted under Subsection (a) by performing
524	524	necessary drug testing of the state developmental center employees
525	525	for the use of a controlled substance as defined by Section 481.002.
526	526	(c) Testing under this section may be performed on a random
527	527	basis or on reasonable suspicion of the use of a controlled
528	528	substance.
529	529	(d) For purposes of this section, a report made under
530	530	Section 555.023 is considered reasonable suspicion of the use of a
531	531	controlled substance.
532	532	Sec. 555.023. REPORTS OF ILLEGAL DRUG USE; POLICY. The
533	533	executive commissioner by rule shall adopt a policy requiring a
534	534	state developmental center employee who knows or reasonably
535	535	suspects that another state developmental center employee is
536	536	illegally using or under the influence of a controlled substance,
537	537	as defined by Section 481.002, to report that knowledge or
538	538	reasonable suspicion to the director of the state developmental
539	539	center.
540	540	Sec. 555.024. NURSING HOME EMPLOYEE TRAINING. (a) Before a
541	541	nursing home employee begins to perform the employee's duties
542	542	without direct supervision, the department shall provide the
543	543	employee with competency training and a course of instruction about
544	544	the general duties of a center employee. The department shall
545	545	ensure the basic center employee competency course focuses on:
546	546	(1) the uniqueness of the individuals the nursing home
547	547	serves including;
548	548	(a) the medically frail and elderly;
549	549	(b) individuals with mental retardation; and
550	550	(c) individuals with physical or mental
551	551	disabilities;
552	552	(2) techniques for improving quality of life for and
553	553	promoting the health and safety of the medically fragile and
554	554	elderly, individuals with mental retardation, and individuals with
555	555	physical or mental disabilities; and
556	556	(3) the conduct expected of nursing home employees.
557	557	(b) The department shall ensure the training required by
558	558	Subsection (a) provides instruction and information regarding the
559	559	following topics:
560	560	(1) the general operation and layout of the nursing
561	561	home, including armed intruder lockdown procedures;
562	562	(2) an introduction to mental retardation, elderly
563	563	physical and mental disabilities, autism spectrum disorder, and
564	564	traumatic brain injury;
565	565	(3) an introduction to mental illness and dual
566	566	diagnosis;
567	567	(4) the rights of individuals with mental retardation
568	568	who receive services from the department;
569	569	(5) respecting personal choices made by residents and
570	570	clients;
571	571	(6) the safe and proper use of restraints and
572	572	medications;
573	573	(7) recognizing and reporting:
574	574	(A) abuse, neglect, and exploitation of
575	575	residents;
576	576	(B) unusual incidents;
577	577	(C) reasonable suspicion of illegal drug use in
578	578	the workplace;
579	579	(D) workplace violence; or
580	580	(E) sexual harassment in the workplace;
581	581	(8) preventing and treating infection;
582	582	(9) first aid;
583	583	(10) cardiopulmonary resuscitation;
584	584	(11) the Health Insurance Portability and
585	585	Accountability Act of 1996 (29 U.S.C. Section 1181 et seq.); and
586	586	(12) civil rights of center employees.
587	587	(c) In addition to the training required by Subsection (a)
588	588	and before a direct care employee begins to perform the direct care
589	589	employee's duties without direct supervision, the department shall
590	590	provide a direct care employee with 40 hours of training and
591	591	instructional information and 8 hours annually of continuing
592	592	education regarding the following topics:
593	593	(1) prevention and management of aggressive behavior;
594	594	(2) observing and reporting changes in behavior,
595	595	appearance, or health of residents and clients;
596	596	(3) positive behavior support;
597	597	(4) emergency response;
598	598	(5) person-directed plans and self-determination;
599	599	(6) seizure safety;
600	600	(7) techniques for:
601	601	(A) lifting;
602	602	(B) positioning; and
603	603	(C) movement and mobility;
604	604	(8) working with aging residents and clients;
605	605	(9) assisting residents and clients:
606	606	(A) who have a visual impairment;
607	607	(B) who have a hearing deficit;
608	608	(C) who require the use of adaptive devices and
609	609	specialized equipment; or
610	610	(D) who have a physical or mental disability;
611	611	(10) communicating with residents and clients who use
612	612	augmentative and alternative devices for communication;
613	613	(11) assisting residents and clients with personal
614	614	hygiene;
615	615	(12) assisting residents and clients with dental
616	616	hygiene;
617	617	(13) recognizing appropriate food textures;
618	618	(14) using proper feeding techniques to assist
619	619	residents and clients with meals;
620	620	(15) addressing issues of PICA; and
621	621	(16) physical and nutritional management plans.
622	622	Sec. 555.026. MORTALITY REVIEW. (a) The executive
623	623	commissioner shall establish an independent mortality review
624	624	system to review the death of a person who, at the time of the
625	625	person's death, was a resident or client.
626	626	(b) A review under this section shall be conducted in
627	627	addition to any review conducted by the state developmental center
628	628	or the Rio Grande State Center.
629	629	(c) The executive commissioner shall contract with a
630	630	patient safety organization certified in accordance with 42 C.F.R.
631	631	Part 3, as effective on January 20, 2009, to conduct independent
632	632	mortality reviews required by this section. The contract must
633	633	require the patient safety organization to conduct an independent
634	634	mortality review using a team consisting of:
635	635	(1) a physician with expertise regarding the medical
636	636	treatment of individuals with mental retardation;
637	637	(2) a registered nurse with expertise regarding the
638	638	medical treatment of individuals with mental retardation;
639	639	(3) a clinician or other professional with expertise
640	640	in the delivery of services and supports for individuals with
641	641	mental retardation; and
642	642	(4) any other appropriate person as provided by the
643	643	executive commissioner.
644	644	(d) A patient safety organization that performs an
645	645	independent mortality review shall submit to the department, the
646	646	office of independent ombudsman, and the commission's office of
647	647	inspector general a report of the findings of the mortality review.
648	648	(e) The department may use information from a mortality
649	649	review report only to advance statewide practices regarding the
650	650	treatment and care of individuals with mental retardation or other
651	651	disabilities.
652	652	(f) The department may release a summary or a statistical
653	653	compilation of data drawn from reports submitted under this section
654	654	only if the summary or statistical compilation does not contain
655	655	information that would permit the identification of an individual.
656	656	[Sections 555.027-555.050 reserved for expansion]
657	657	SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE
658	658	DEVELOPMENTAL CENTERS
659	659	Sec. 555.051. ESTABLISHMENT; PURPOSE. The office of
660	660	independent ombudsman is established for the purpose of
661	661	investigating, evaluating, and securing the rights of the residents
662	662	and clients of state developmental centers. The office is
663	663	administratively attached to the department. The department shall
664	664	provide administrative support and resources to the office as
665	665	necessary for the office to perform its duties.
666	666	Sec. 555.052. INDEPENDENCE. The independent ombudsman in
667	667	the performance of the ombudsman's duties and powers under this
668	668	subchapter acts independently of the department.
669	669	Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. The
670	670	governor shall appoint the independent ombudsman.
671	671	Sec. 555.054. ASSISTANT OMBUDSMEN. The independent
672	672	ombudsman shall:
673	673	(1) hire assistant ombudsmen to perform, under the
674	674	direction of the independent ombudsman, the same duties and
675	675	exercise the same powers as the independent ombudsman; and
676	676	(2) station an assistant ombudsman at each state
677	677	developmental center.
678	678	Sec. 555.055. CONFLICT OF INTEREST. A person may not serve
679	679	as independent ombudsman or as an assistant ombudsman if the person
680	680	or the person's spouse:
681	681	(1) is employed by or participates in the management
682	682	of a business entity or other organization receiving funds from the
683	683	department;
684	684	(2) owns or controls, directly or indirectly, any
685	685	interest in a business entity or other organization receiving funds
686	686	from the department; or
687	687	(3) is required to register as a lobbyist under
688	688	Chapter 305, Government Code, because of the person's activities or
689	689	compensation on behalf of a profession related to the operation of
690	690	the department.
691	691	Sec. 555.056. REPORT. (a) The independent ombudsman shall
692	692	submit on a biannual basis to the governor, the lieutenant
693	693	governor, and the speaker of the house of representatives a report
694	694	that is both aggregated and disaggregated by individual state
695	695	developmental center and describes:
696	696	(1) the work of the independent ombudsman;
697	697	(2) the results of any review or investigation
698	698	undertaken by the independent ombudsman, including reviews or
699	699	investigation of services contracted by the department; and
700	700	(3) any recommendations that the independent
701	701	ombudsman has in relation to the duties of the independent
702	702	ombudsman.
703	703	(b) The independent ombudsman shall ensure that information
704	704	submitted in a report under Subsection (a) does not permit the
705	705	identification of an individual.
706	706	(c) The independent ombudsman shall immediately report to
707	707	the governor, lieutenant governor, and speaker of the house of
708	708	representatives any particularly serious or flagrant:
709	709	(1) case of abuse or injury of a resident or client
710	710	about which the independent ombudsman is made aware;
711	711	(2) problem concerning the administration of a state
712	712	developmental center program or operation; or
713	713	(3) interference by a state developmental center, the
714	714	department, or the commission with an investigation conducted by
715	715	the independent ombudsman.
716	716	Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The
717	717	department shall allow any resident or client, authorized
718	718	representative of a resident or client, family member of a resident
719	719	or client, or other interested party to communicate with the
720	720	independent ombudsman or an assistant ombudsman. The
721	721	communication:
722	722	(1) may be in person, by mail, or by any other means;
723	723	and
724	724	(2) is confidential and privileged.
725	725	(b) The records of the independent ombudsman are
726	726	confidential, except that the independent ombudsman shall:
727	727	(1) share with the Department of Family and Protective
728	728	Services a communication that may involve the abuse, neglect, or
729	729	exploitation of a resident or client;
730	730	(2) share with the regulatory services division of the
731	731	department a communication that may involve a violation of an
732	732	ICF-MR standard or condition of participation; and
733	733	(3) disclose the ombudsman's nonprivileged records if
734	734	required by a court order on a showing of good cause.
735	735	(c) The independent ombudsman may make reports relating to
736	736	an investigation public after the investigation is complete but
737	737	only if the name and any other personally identifiable information
738	738	of a resident or client, authorized representative of a resident or
739	739	client, family member of a resident or client, state developmental
740	740	center, and state developmental center employee are redacted from
741	741	the report and remain confidential.
742	742	(d) The name, address, or other personally identifiable
743	743	information of a person who files a complaint with the office of
744	744	independent ombudsman, information generated by the office of
745	745	independent ombudsman in the course of an investigation, and
746	746	confidential records obtained by the office of independent
747	747	ombudsman are confidential and not subject to disclosure under
748	748	Chapter 552, Government Code, except as provided by this section.
749	749	Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The
750	750	independent ombudsman shall promote awareness among the public,
751	751	residents, clients, and state developmental center employees of:
752	752	(1) how the office may be contacted;
753	753	(2) the purpose of the office; and
754	754	(3) the services the office provides.
755	755	Sec. 555.059. DUTIES AND POWERS. (a) The independent
756	756	ombudsman shall:
757	757	(1) evaluate the delivery of services to residents and
758	758	clients to ensure that the rights of residents and clients are fully
759	759	observed;
760	760	(2) refer a complaint alleging the abuse, neglect, or
761	761	exploitation of a resident or client to the Department of Family and
762	762	Protective Services for investigation;
763	763	(3) refer a complaint alleging a possible violation of
764	764	an ICF-MR standard or condition of participation to the regulatory
765	765	services division of the department;
766	766	(4) refer a complaint alleging a criminal offense,
767	767	other than an allegation of abuse, neglect, or exploitation of a
768	768	resident or client, to the commission's office of inspector
769	769	general;
770	770	(5) conduct investigations of complaints, other than
771	771	complaints alleging criminal offenses or the abuse, neglect, or
772	772	exploitation of a resident or client, if the office determines
773	773	that:
774	774	(A) a resident or client or the resident's or
775	775	client's family may be in need of assistance from the office; or
776	776	(B) a complaint raises the possibility of a
777	777	systemic issue in the state developmental center's provision of
778	778	services;
779	779	(6) conduct an annual audit of each state
780	780	developmental center's policies, practices, and procedures to
781	781	ensure that each resident and client is encouraged to exercise the
782	782	resident's or client's rights, including:
783	783	(A) the right to file a complaint; and
784	784	(B) the right to due process;
785	785	(7) prepare and deliver an annual report regarding the
786	786	findings of each audit to the:
787	787	(A) executive commissioner;
788	788	(B) commissioner;
789	789	(C) Aging and Disability Services Council;
790	790	(D) governor;
791	791	(E) lieutenant governor;
792	792	(F) speaker of the house of representatives;
793	793	(G) standing committees of the senate and house
794	794	of representatives with primary jurisdiction over state
795	795	developmental centers; and
796	796	(H) state auditor;
797	797	(8) require a state developmental center to provide
798	798	access to all records, data, and other information under the
799	799	control of the center that the independent ombudsman determines is
800	800	necessary to investigate a complaint or to conduct an audit under
801	801	this section;
802	802	(9) review all final reports produced by the
803	803	Department of Family and Protective Services and the regulatory
804	804	services division of the department regarding a complaint referred
805	805	by the independent ombudsman;
806	806	(10) provide assistance to a resident, client,
807	807	authorized representative of a resident or client, or family member
808	808	of a resident or client who the independent ombudsman determines is
809	809	in need of assistance, including advocating with an agency,
810	810	provider, or other person in the best interests of the resident or
811	811	client; and
812	812	(11) make appropriate referrals under any of the
813	813	duties and powers listed in this subsection.
814	814	(b) The independent ombudsman may apprise a person who is
815	815	interested in a resident's or client's welfare of the rights of the
816	816	resident or client.
817	817	(c) To assess whether a resident's or client's rights have
818	818	been violated, the independent ombudsman may, in any matter that
819	819	does not involve an alleged criminal offense or the abuse, neglect,
820	820	or exploitation of a resident or client, contact or consult with an
821	821	administrator, employee, resident, client, family member of a
822	822	resident or client, expert, or other individual in the course of the
823	823	investigation or to secure information.
824	824	(d) Notwithstanding any other provision of this chapter,
825	825	the independent ombudsman may not investigate an alleged criminal
826	826	offense or the alleged abuse, neglect, or exploitation of a
827	827	resident or client. The independent ombudsman shall refer an
828	828	allegation of abuse, neglect, or exploitation of a resident or
829	829	client to the Department of Family and Protective Services.
830	830	Sec. 555.060. RETALIATION PROHIBITED. The department or a
831	831	state developmental center may not retaliate against a department
832	832	employee or state developmental center employee who in good faith
833	833	makes a complaint to the office of independent ombudsman or
834	834	cooperates with the office in an investigation.
835	835	Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall
836	836	establish a permanent, toll-free number for the purpose of
837	837	receiving any information concerning the violation of a right of a
838	838	resident or client.
839	839	(b) The office shall ensure that:
840	840	(1) the toll-free number is prominently displayed in
841	841	the main administration area of a state developmental center and in
842	842	each room in which a resident lives or a client receives services;
843	843	and
844	844	(2) a resident, a client, the authorized
845	845	representative of a resident, and a state developmental center
846	846	employee have confidential access to a telephone for the purpose of
847	847	calling the toll-free number.
848	848	SECTION 19. Section 591.003, Health and Safety Code, is
849	849	amended by adding Subdivision (19-a) to read as follows:
850	850	(19-a) "State developmental center" has the meaning
851	851	provided by Section 531.002.
852	852	SECTION 20. Chapter 592, Health and Safety Code, is amended
853	853	by adding Subchapter E to read as follows:
854	854	SUBCHAPTER E. USE OF RESTRAINTS IN STATE DEVELOPMENTAL CENTER
855	855	Sec. 592.101. DEFINITION. In this subchapter, "executive
856	856	commissioner" means the executive commissioner of the Health and
857	857	Human Services Commission.
858	858	Sec. 592.102. USE OF RESTRAINTS. The executive
859	859	commissioner shall adopt rules to ensure that:
860	860	(1) a mechanical or physical restraint is not
861	861	administered to a resident of a state developmental center unless
862	862	the restraint is:
863	863	(A) necessary to prevent imminent physical
864	864	injury to the resident or another; and
865	865	(B) the least restrictive restraint effective to
866	866	prevent imminent physical injury;
867	867	(2) the administration of a mechanical or physical
868	868	restraint to a resident of a state developmental center ends
869	869	immediately once the imminent risk of physical injury abates; and
870	870	(3) a mechanical or physical restraint is not
871	871	administered to a resident of a state developmental center as
872	872	punishment or as part of a behavior plan.
873	873	Sec. 592.103. STRAITJACKETS PROHIBITED. A person may not
874	874	use a straitjacket to restrain a resident of a state developmental
875	875	center.
876	876	Sec. 592.104. CONFLICT WITH OTHER LAW. To the extent of a
877	877	conflict between this subchapter and Chapter 322, this subchapter
878	878	controls.
879	879	SECTION 21. Section 593.042, Health and Safety Code, is
880	880	amended by adding Subsection (c) to read as follows:
881	881	(c) An application for commitment of a person to a
882	882	residential care facility that is a state developmental center must
883	883	include a statement demonstrating that the proposed resident meets
884	884	the requirements for commitment to a state developmental center
885	885	under Section 593.052(a-1).
886	886	SECTION 22. Section 593.052, Health and Safety Code, is
887	887	amended by amending Subsections (a) and (b) and adding Subsections
888	888	(a-1) and (b-1) to read as follows:
889	889	(a) A proposed resident may not be committed to a
890	890	residential care facility unless:
891	891	(1) the proposed resident is a person with mental
892	892	retardation;
893	893	(2) evidence is presented showing that because of
894	894	retardation, the proposed resident:
895	895	(A) represents a substantial risk of physical
896	896	impairment or injury to himself or others; or
897	897	(B) is unable to provide for and is not providing
898	898	for the proposed resident's most basic personal physical needs;
899	899	(3) the proposed resident cannot be adequately and
900	900	appropriately habilitated in an available, less restrictive
901	901	setting; and
902	902	(4) the residential care facility:
903	903	(A) provides habilitative services, care,
904	904	training, and treatment appropriate to the proposed resident's
905	905	needs; and
906	906	(B) is not a state developmental center.
907	907	(a-1) A proposed resident may not be committed to a
908	908	residential care facility that is a state developmental center
909	909	unless:
910	910	(1) the proposed resident is a person with:
911	911	(A) severe or profound mental retardation; or
912	912	(B) mild or moderate mental retardation who:
913	913	(i) has extraordinary medical needs; or
914	914	(ii) exhibits dangerous behavior that
915	915	represents a substantial risk of physical impairment or injury to
916	916	self or others;
917	917	(2) evidence is presented showing that the proposed
918	918	resident:
919	919	(A) represents a substantial risk of physical
920	920	impairment or injury to self or others; or
921	921	(B) is unable to provide for and is not providing
922	922	for the proposed resident's most basic personal physical needs;
923	923	(3) the proposed resident cannot be adequately and
924	924	appropriately habilitated in an available, less restrictive
925	925	setting; and
926	926	(4) the residential care facility is a state
927	927	developmental center that provides habilitative services, care,
928	928	training, and treatment appropriate to the proposed resident's
929	929	needs.
930	930	(b) If it is determined that the requirements of Subsection
931	931	(a) have been met and that long-term placement in a residential care
932	932	facility, other than a state developmental center, is appropriate,
933	933	the court shall commit the proposed resident for care, treatment,
934	934	and training to a community center or the Department of Aging and
935	935	Disability Services [department] when space is available in a
936	936	residential care facility, other than a state developmental center.
937	937	(b-1) If it is determined that the requirements of
938	938	Subsection (a-1) have been met and that long-term placement in a
939	939	residential care facility that is a state developmental center is
940	940	appropriate, the court shall commit the proposed resident for care,
941	941	treatment, and training to the Department of Aging and Disability
942	942	Services when space is available in a state developmental center.
943	943	SECTION 23. Section 48.252, Human Resources Code, is
944	944	amended by adding Subsection (d) to read as follows:
945	945	(d) If an investigation under this section reveals evidence
946	946	of the abuse, neglect, or exploitation of a resident or client of a
947	947	state developmental center as defined by Section 531.002, Health
948	948	and Safety Code, the ICF-MR component of the Rio Grande State
949	949	Center, or a non-state operated ICF-MR's, and a caseworker of the
950	950	department or a supervisor of a caseworker knows of the abuse,
951	951	neglect, or exploitation is a criminal offense, the caseworker or
952	952	supervisor shall immediately notify the Health and Human Services
953	953	Commission's office of inspector general and promptly provide the
954	954	Health and Human Services Commission's office of inspector general
955	955	with a copy of the department's investigation report.
956	956	SECTION 24. Subchapter G, Chapter 48, Human Resources Code,
957	957	is amended by adding Section 48.3015 to read as follows:
958	958	Sec. 48.3015. INVESTIGATION OF REPORTS IN ICF-MR. (a)
959	959	Notwithstanding Section 48.301, the department shall receive and
960	960	investigate reports of abuse, neglect, or exploitation of an
961	961	individual with a disability receiving services in an intermediate
962	962	care facility for the mentally retarded.
963	963	(b) The executive commissioner shall adopt rules governing
964	964	investigations conducted under this section and the provision of
965	965	services as necessary to alleviate abuse, neglect, or exploitation.
966	966	SECTION 25. Section 161.001, Human Resources Code, is
967	967	amended by adding Subdivision (6) to read as follows:
968	968	(6) "State developmental center" has the meaning
969	969	assigned by Section 531.002, Health and Safety Code.
970	970	SECTION 26. Section 161.052, Human Resources Code, is
971	971	amended by amending Subsection (b) and adding Subsection (e) to
972	972	read as follows:
973	973	(b) The executive commissioner shall prepare and by rule
974	974	adopt personnel standards. The executive commissioner shall adopt
975	975	personnel standards for direct care employees at state
976	976	developmental centers that are designed to ensure the safety of and
977	977	a high standard of care for residents of a state developmental
978	978	center.
979	979	(e) Subject to the availability of funds, the department
980	980	shall prescribe the number of direct care employees at state
981	981	developmental centers and the salaries for those employees
982	982	necessary to attract and maintain quality employees. The
983	983	commissioner shall ensure that policies regarding employees at
984	984	state developmental centers are designed to reduce turnover and
985	985	ensure continuity of care for residents.
986	986	SECTION 27. Subchapter B, Chapter 161, Human Resources
987	987	Code, is amended by adding Section 161.033 to read as follows:
988	988	Sec. 161.033. STATE DEVELOPMENTAL CENTER REQUIREMENTS FOR
989	989	LONG-RANGE PLAN. In developing the long-range plan required by
990	990	Section 533.032, Health and Safety Code, the department shall:
991	991	(1) include strategies for effectively serving the
992	992	increasing number of state developmental center residents
993	993	receiving community-based care;
994	994	(2) describe initiatives for effectively implementing
995	995	the strategies required by Subdivision (1), including enhancing
996	996	community services to assist residents through the development of:
997	997	(A) affordable housing options;
998	998	(B) alternatives for serving children;
999	999	(C) safety net and emergency services;
1000	1000	(D) specialized services for residents as the
1001	1001	residents age;
1002	1002	(E) support services for the aging caregiver
1003	1003	population; and
1004	1004	(F) improved monitoring of the health and safety
1005	1005	of recipients of community-based services; and
1006	1006	(3) estimate the fiscal impact of each strategy and
1007	1007	initiative, including the impact on department funding and the
1008	1008	number of full-time equivalent department employees and the cost
1009	1009	implications to other health and human services agencies.
1010	1010	SECTION 28. Subchapter D, Chapter 161, Human Resources
1011	1011	Code, is amended by adding Sections 161.076 and 161.077 to read as
1012	1012	follows:
1013	1013	Sec. 161.077. CHILDREN'S UNIT. (a) The department shall
1014	1014	establish a centralized unit at the department to oversee long-term
1015	1015	care and support for children with disabilities who receive
1016	1016	services from the department.
1017	1017	(b) The children's unit shall oversee the permanency
1018	1018	planning process required by Section 531.0245, Government Code, for
1019	1019	children with disabilities who reside in a facility operated or
1020	1020	licensed by the department.
1021	1021	SECTION 29. The Legislature recognizes the importance of
1022	1022	ensuring quality care for individual requiring long term care
1023	1023	services in nursing homes and other settings.
1024	1024	SECTION 30. Section 261.404, Family Code, is amended by
1025	1025	adding Subsection (b-1) to read as follows:
1026	1026	(b-1) If an investigation under this section reveals
1027	1027	evidence of abuse, neglect, or exploitation of a resident or client
1028	1028	of a nursing home, and a caseworker of the department or a
1029	1029	supervisor of a caseworker knows of the abuse, neglect, or
1030	1030	exploitation is a criminal offense, the caseworker or supervisor
1031	1031	shall immediately notify the Health and Human Services Commission's
1032	1032	office of inspector general and promptly provide the Health and
1033	1033	Human Services Commission's office of inspector general with a copy
1034	1034	of the department's investigation report.
1035	1035	SECTION 31. Subchapter F, Chapter 411, Government Code, is
1036	1036	amended by adding Section 411.1144 to read as follows:
1037	1037	Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD
1038	1038	INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS AT NURSING
1039	1039	HOMES. (a) The Department of State Health Services and the
1040	1040	Department of Aging and Disability Services are authorized to
1041	1041	obtain from the department criminal history record information
1042	1042	maintained by the department that relates to a person:
1043	1043	(1) who is:
1044	1044	(A) an applicant for employment with the agency;
1045	1045	(B) an employee of the agency;
1046	1046	(C) a volunteer with the agency; or
1047	1047	(D) an applicant for a volunteer position with
1048	1048	the agency; and
1049	1049	(2) who would be employed a nursing home.
1050	1050	(b) Criminal history record information obtained by an
1051	1051	agency under Subsection (a) may not be released or disclosed to any
1052	1052	person except:
1053	1053	(1) on court order;
1054	1054	(2) with the consent of the person who is the subject
1055	1055	of the criminal history record information;
1056	1056	(3) for purposes of an administrative hearing held by
1057	1057	the agency concerning the person who is the subject of the criminal
1058	1058	history record information; or
1059	1059	(4) as provided by Subsection (c).
1060	1060	(c) An agency is not prohibited from releasing criminal
1061	1061	history record information obtained under Subsection (a) or (d) to
1062	1062	the person who is the subject of the criminal history record
1063	1063	information.
1064	1064	(d) Subject to Section 411.087, the Department of State
1065	1065	Health Services and the Department of Aging and Disability Services
1066	1066	are authorized to:
1067	1067	(1) obtain through the Federal Bureau of Investigation
1068	1068	criminal history record information maintained or indexed by that
1069	1069	bureau that pertains to a person described by Subsection (a);
1070	1070	(2) obtain from any other criminal justice agency in
1071	1071	this state criminal history record information maintained by that
1072	1072	criminal justice agency that relates to a person described by
1073	1073	Subsection (a); and
1074	1074	(3) obtain from any licensing board in this state
1075	1075	disciplinary information maintained by that licensing board that
1076	1076	relates to a person described by section (a).
1077	1077	SECTION 32. Subchapter B, Chapter 531, Government Code, is
1078	1078	amended by adding Section 531.02446 to read as follows:
1079	1079	Sec. 531.02446. SAFETY NET FOR COMMUNITY SERVICES. (a) In
1080	1080	this section, "state developmental center" has the meaning assigned
1081	1081	by Section 531.002, Health and Safety Code.
1082	1082	(b) The executive commissioner by rule shall develop safety
1083	1083	net protocols to prevent individuals with mental retardation
1084	1084	receiving services in the community from being placed in a nursing
1085	1085	home in an emergency situation.
1086	1086	(c) The executive commissioner shall ensure that the safety
1087	1087	net protocols are designed to provide for temporary, emergency
1088	1088	living arrangements for individuals at immediate risk of admittance
1089	1089	to a nursing home who after receiving emergency care expects to
1090	1090	return to community care.
1091	1091	SECTION 33. Subchapter C, Chapter 531, Government Code, is
1092	1092	amended by adding Section 531.1022 to read as follows:
1093	1093	Sec. 531.1022. ASSISTING CERTAIN INVESTIGATIONS BY LAW
1094	1094	ENFORCEMENT. (a) The office of inspector general shall employ and
1095	1095	commission peace officers for the sole purpose of assisting a state
1096	1096	or local law enforcement agency in the investigation of an alleged
1097	1097	criminal offense involving a resident or client of a nursing home. A
1098	1098	peace officer employed and commissioned by the office is a peace
1099	1099	officer for purposes of Article 2.12, Code of Criminal Procedure.
1100	1100	(b) The office of inspector general shall prepare a final
1101	1101	report for each investigation conducted under this section. The
1102	1102	office shall ensure that the report does not contain identifying
1103	1103	information of an individual mentioned in the report. The final
1104	1104	report must include:
1105	1105	(1) a summary of the activities performed by the
1106	1106	office of inspector general in conducting the investigation;
1107	1107	(2) a statement regarding whether the investigation
1108	1108	resulted in a finding that an alleged criminal offense was
1109	1109	committed; and
1110	1110	(3) a description of the alleged criminal offense that
1111	1111	was committed.
1112	1112	(c) The office of inspector general shall deliver the final
1113	1113	report to the:
1114	1114	(1) executive commissioner;
1115	1115	(2) commissioner of the Department of Aging and
1116	1116	Disability Services;
1117	1117	(3) commissioner of the Department of Family and
1118	1118	Protective Services;
1119	1119	(4) Aging and Disability Services Council;
1120	1120	(5) governor;
1121	1121	(6) lieutenant governor;
1122	1122	(7) speaker of the house of representatives;
1123	1123	(8) standing committees of the senate and house of
1124	1124	representatives with primary jurisdiction over state developmental
1125	1125	centers; and
1126	1126	(9) state auditor.
1127	1127	(d) A final report regarding an investigation is subject to
1128	1128	required disclosure under Chapter 552. All information and
1129	1129	materials compiled by the office of inspector general in connection
1130	1130	with an investigation are confidential, and not subject to
1131	1131	disclosure under Chapter 552, and not subject to disclosure,
1132	1132	discovery, subpoena, or other means of legal compulsion for their
1133	1133	release to anyone other than the office or its employees or agents
1134	1134	involved in the investigation conducted by the office, except that
1135	1135	this information may be disclosed to the office of the attorney
1136	1136	general, the state auditor's office, and law enforcement agencies.
1137	1137	(e) The office of inspector general shall prepare an annual
1138	1138	status report of its activities under this section. The annual
1139	1139	report may not contain identifying information of an individual
1140	1140	mentioned in the report. The annual status report must include
1141	1141	information that is aggregated and disaggregated by individual
1142	1142	state developmental center or the ICF-MR component of the Rio
1143	1143	Grande State Center regarding:
1144	1144	(1) the number and type of alleged offenses
1145	1145	investigated by the office;
1146	1146	(2) the number and type of alleged offenses involving
1147	1147	an employee of nursing home;
1148	1148	(3) the relationship of an alleged victim to an
1149	1149	alleged perpetrator; and
1150	1150	(4) the number of investigations conducted that
1151	1151	involve the suicide, death, or hospitalization of an alleged
1152	1152	victim.
1153	1153	(f) The office of inspector general shall submit the annual
1154	1154	status report to the:
1155	1155	(1) executive commissioner;
1156	1156	(2) commissioner of the Department of Aging and
1157	1157	Disability Services;
1158	1158	(3) commissioner of the Department of Family and
1159	1159	Protective Services;
1160	1160	(4) Aging and Disability Services Council;
1161	1161	(5) Family and Protective Services Council;
1162	1162	(6) governor;
1163	1163	(7) lieutenant governor;
1164	1164	(8) speaker of the house of representatives;
1165	1165	(9) standing committees of the senate and house of
1166	1166	representatives with primary jurisdiction over state developmental
1167	1167	centers;
1168	1168	(10) state auditor; and
1169	1169	(11) comptroller.
1170	1170	(g) An annual status report submitted under this section is
1171	1171	public information under Chapter 552.
1172	1172	SECTION 34. Section 252.122(a), Health and Safety Code, is
1173	1173	amended to read as follows:
1174	1174	(a) A person, including an owner or employee of a facility,
1175	1175	who has cause to believe that the physical or mental health or
1176	1176	welfare of a resident has been or may be adversely affected by abuse
1177	1177	[or], neglect, or exploitation caused by another person shall
1178	1178	report the abuse or neglect to the Department of Family and
1179	1179	Protective Services [department], to a designated agency, or to
1180	1180	both the Department of Family and Protective Services [department]
1181	1181	and the designated agency, as specified in [department] rules
1182	1182	adopted by the Department of Family and Protective Services.
1183	1183	SECTION 35. Section 252.124(b), Health and Safety Code, is
1184	1184	amended to read as follows:
1185	1185	(b) A local or state law enforcement agency that receives a
1186	1186	report of abuse [or], neglect, or exploitation shall refer the
1187	1187	report to the Department of Family and Protective Services
1188	1188	[department] or the designated agency.
1189	1189	SECTION 36. Sections 252.125(a), (c), (d), (e), (f), and
1190	1190	(g), Health and Safety Code, are amended to read as follows:
1191	1191	(a) The Department of Family and Protective Services
1192	1192	[department] or the designated agency shall make a thorough
1193	1193	investigation promptly after receiving either the oral or written
1194	1194	report.
1195	1195	(c) In the investigation, the Department of Family and
1196	1196	Protective Services [department] or the designated agency shall
1197	1197	determine:
1198	1198	(1) the nature, extent, and cause of the abuse or
1199	1199	neglect;
1200	1200	(2) the identity of the person responsible for the
1201	1201	abuse [or], neglect, or exploitation;
1202	1202	(3) the names and conditions of the other residents;
1203	1203	(4) an evaluation of the persons responsible for the
1204	1204	care of the residents;
1205	1205	(5) the adequacy of the facility environment; and
1206	1206	(6) any other information required by the Department
1207	1207	of Family and Protective Services [department].
1208	1208	(d) The investigation may include a visit to the resident's
1209	1209	facility and an interview with the resident, if considered
1210	1210	appropriate by the Department of Family and Protective Services
1211	1211	[department].
1212	1212	(e) If the Department of Family and Protective Services
1213	1213	[department] attempts to carry out an on-site investigation and it
1214	1214	is shown that admission to the facility or any place where a
1215	1215	resident is located cannot be obtained, a probate or county court
1216	1216	shall order the person responsible for the care of the resident or
1217	1217	the person in charge of a place where the resident is located to
1218	1218	allow admission for the investigation and any interview with the
1219	1219	resident.
1220	1220	(f) Before the completion of the investigation, the
1221	1221	Department of Family and Protective Services [department] shall
1222	1222	file a petition for temporary care and protection of the resident if
1223	1223	the Department of Family and Protective Services [department]
1224	1224	determines that immediate removal is necessary to protect the
1225	1225	resident from further abuse [or], neglect, or exploitation.
1226	1226	(g) The Department of Family and Protective Services
1227	1227	[department] or the designated agency shall make a complete written
1228	1228	report of the investigation and submit the report and its
1229	1229	recommendations to the district attorney and the appropriate law
1230	1230	enforcement agency and, if necessary, to the Department of Family
1231	1231	and Protective Services [department] on the Department of Family
1232	1232	and Protective Services' [department's] request.
1233	1233	SECTION 37. Section 252.126, Health and Safety Code, is
1234	1234	amended to read as follows:
1235	1235	Sec. 252.126. CONFIDENTIALITY. A report, record, or
1236	1236	working paper used or developed in an investigation made under this
1237	1237	subchapter is confidential and may be disclosed only for purposes
1238	1238	consistent with the rules adopted by the executive commissioner of
1239	1239	the Health and Human Services Commission [beard] or the designated
1240	1240	agency.
1241	1241	SECTION 38. Section 252.129, Health and Safety Code, is
1242	1242	amended by adding Subsection (d) to read as follows:
1243	1243	(d) The department and the Department of Family and
1244	1244	Protective Services shall cooperate to ensure that the central
1245	1245	registry required by this section accurately includes reported
1246	1246	cases of resident abuse and neglect.
1247	1247	SECTION 39. Sections 252.134(a), (b), (c), (d), and (e),
1248	1248	Health and Safety Code, are amended to read as follows:
1249	1249	(a) A facility licensed under this chapter shall submit a
1250	1250	report to the Department of Family and Protective Services
1251	1251	[department] concerning the death of:
1252	1252	(1) a resident of the facility; and
1253	1253	(2) a former resident that occurs [24] 72 hours or less
1254	1254	after the former resident is transferred from the facility to a
1255	1255	hospital.
1256	1256	(b) The report must be submitted not later than the 10th
1257	1257	working day after the last day of each month in which a resident of
1258	1258	the facility dies. The facility must make the report on a form
1259	1259	prescribed by the Department of Family and Protective Services
1260	1260	[department]. The report must contain the name and social security
1261	1261	number of the deceased.
1262	1262	(c) The Department of Family and Protective Services
1263	1263	[department] shall correlate reports under this section with death
1264	1264	certificate information to develop data relating to the:
1265	1265	(1) name and age of the deceased;
1266	1266	(2) official cause of death listed on the death
1267	1267	certificate;
1268	1268	(3) date, time, and place of death; and
1269	1269	(4) name and address of the facility in which the
1270	1270	deceased resided.
1271	1271	(d) Unless specified by rules adopted by the executive
1272	1272	commissioner of the Health and Human Services Commission [board
1273	1273	rule], a record under this section is confidential and not subject
1274	1274	to the provisions of Chapter 552, Government Code.
1275	1275	(e) The Department of Family and Protective Services
1276	1276	[department] shall develop statistical information on official
1277	1277	causes of death to determine patterns and trends of incidents of
1278	1278	death among persons [with mental retardation and related
1279	1279	conditions] requiring long term care services and in [specific
1280	1280	facilities] nursing homes. Information developed under this
1281	1281	subsection is not confidential.
1282	1282	SECTION 40. Subchapter B, Chapter 551, Health and Safety
1283	1283	Code, is amended by adding Section 551.0225 to read as follows:
1284	1284	Sec. 551.0225. POWERS AND DUTIES OF NURSING HOME DIRECTOR.
1285	1285	(a) The director of nursing home is the administrative head of the
1286	1286	center.
1287	1287	(b) The director of a nursing home has the custody of and
1288	1288	responsibility to care for the buildings, grounds, furniture, and
1289	1289	other property relating to the center.
1290	1290	(c) The director of a nursing home shall:
1291	1291	(1) oversee the admission and discharge of residents
1292	1292	and clients;
1293	1293	(2) keep a register of all residents and clients
1294	1294	admitted to or discharged from the nursing home;
1295	1295	(3) supervise repairs and improvements to the nursing
1296	1296	home;
1297	1297	(4) ensure that nursing home money is spent
1298	1298	judiciously and economically;
1299	1299	(5) keep an accurate and detailed account of all money
1300	1300	received and spent, stating the source of the money and on whom and
1301	1301	the purpose for which the money is spent;
1302	1302	(6) keep a full record of the nursing home's
1303	1303	operations; and
1304	1304	(7) work to:
1305	1305	(i) reduce the turnover rate of the nursing
1306	1306	home employees;
1307	1307	(ii) develop and implement a training and
1308	1308	continuing education program for the nursing home employees; and
1309	1309	(iii) reduce incidences of abuse, neglect
1310	1310	and exploitation of residents and clients.
1311	1311	(d) In accordance with departmental rules and operating
1312	1312	procedures, the director of a nursing home shall:
1313	1313	(1) establish policy to govern the nursing home that
1314	1314	the director considers will best promote the residents' interest
1315	1315	and welfare;
1316	1316	(2) hire subordinate officers, teachers, and other
1317	1317	employees and set their salaries, in the absence of other law; and
1318	1318	(3) dismiss a subordinate officer, teacher, or
1319	1319	employee.
1320	1320	SECTION 41. Subtitle B, Title 7, Health and Safety Code, is
1321	1321	amended by adding Chapter 555 to read as follows:
1322	1322	Sec. 555.022. DRUG TESTING; POLICY. (a) The executive
1323	1323	commissioner by rule shall adopt a policy regarding random testing
1324	1324	and reasonable suspicion testing for the illegal use of drugs by a
1325	1325	nursing home employee.
1326	1326	(b) The director of a nursing home shall enforce the policy
1327	1327	adopted under Subsection (a) by performing necessary drug testing
1328	1328	of the nursing home employees for the use of a controlled substance
1329	1329	as defined by Section 481.002.
1330	1330	(c) Testing under this section may be performed on a random
1331	1331	basis or on reasonable suspicion of the use of a controlled
1332	1332	substance.
1333	1333	(d) For purposes of this section, a report made under
1334	1334	Section 555.023 is considered reasonable suspicion of the use of a
1335	1335	controlled substance.
1336	1336	Sec. 555.023. REPORTS OF ILLEGAL DRUG USE; POLICY. The
1337	1337	executive commissioner by rule shall adopt a policy requiring a
1338	1338	nursing home employee who knows or reasonably suspects that another
1339	1339	nursing home employee is illegally using or under the influence of a
1340	1340	controlled substance, as defined by Section 481.002, to report that
1341	1341	knowledge or reasonable suspicion to the director of the nursing
1342	1342	home.
1343	1343	Sec. 555.024. NURSING HOME EMPLOYEE TRAINING. (a) Before a
1344	1344	nursing home employee begins to perform the employee's duties
1345	1345	without direct supervision, the department shall provide the
1346	1346	employee with competency training and a course of instruction about
1347	1347	the general duties of a center employee. The department shall
1348	1348	ensure the basic center employee competency course focuses on:
1349	1349	(1) the uniqueness of the individuals the nursing home
1350	1350	serves including;
1351	1351	(a) the medically frail and elderly;
1352	1352	(b) individuals with mental retardation; and
1353	1353	(c) individuals with physical or mental
1354	1354	disabilities;
1355	1355	(2) techniques for improving quality of life for and
1356	1356	promoting the health and safety of the medically fragile and
1357	1357	elderly, individuals with mental retardation, and individuals with
1358	1358	physical or mental disabilities; and
1359	1359	(3) the conduct expected of nursing home employees.
1360	1360	(b) The department shall ensure the training required by
1361	1361	Subsection (a) provides instruction and information regarding the
1362	1362	following topics:
1363	1363	(1) the general operation and layout of the nursing
1364	1364	home, including armed intruder lockdown procedures;
1365	1365	(2) an introduction to mental retardation, elderly
1366	1366	physical and mental disabilities, autism spectrum disorder, and
1367	1367	traumatic brain injury;
1368	1368	(3) an introduction to mental illness and dual
1369	1369	diagnosis;
1370	1370	(4) the rights of individuals with mental retardation
1371	1371	who receive services from the department;
1372	1372	(5) respecting personal choices made by residents and
1373	1373	clients;
1374	1374	(6) the safe and proper use of restraints and
1375	1375	medications;
1376	1376	(7) recognizing and reporting:
1377	1377	(A) abuse, neglect, and exploitation of
1378	1378	residents;
1379	1379	(B) unusual incidents;
1380	1380	(C) reasonable suspicion of illegal drug use in
1381	1381	the workplace;
1382	1382	(D) workplace violence; or
1383	1383	(E) sexual harassment in the workplace;
1384	1384	(8) preventing and treating infection;
1385	1385	(9) first aid;
1386	1386	(10) cardiopulmonary resuscitation;
1387	1387	(11) the Health Insurance Portability and
1388	1388	Accountability Act of 1996 (29 U.S.C. Section 1181 et seq.); and
1389	1389	(12) civil rights of center employees.
1390	1390	(c) In addition to the training required by Subsection (a)
1391	1391	and before a direct care employee begins to perform the direct care
1392	1392	employee's duties without direct supervision, the department shall
1393	1393	provide a direct care employee with 40 hours of training and
1394	1394	instructional information and 8 hours annually of continuing
1395	1395	education regarding the following topics:
1396	1396	(1) prevention and management of aggressive behavior;
1397	1397	(2) observing and reporting changes in behavior,
1398	1398	appearance, or health of residents and clients;
1399	1399	(3) positive behavior support;
1400	1400	(4) emergency response;
1401	1401	(5) person-directed plans and self-determination;
1402	1402	(6) seizure safety;
1403	1403	(7) techniques for:
1404	1404	(A) lifting;
1405	1405	(B) positioning; and
1406	1406	(C) movement and mobility;
1407	1407	(8) working with aging residents and clients;
1408	1408	(9) assisting residents and clients:
1409	1409	(A) who have a visual impairment;
1410	1410	(B) who have a hearing deficit;
1411	1411	(C) who require the use of adaptive devices and
1412	1412	specialized equipment; or
1413	1413	(D) who have a physical or mental disability;
1414	1414	(10) communicating with residents and clients who use
1415	1415	augmentative and alternative devices for communication;
1416	1416	(11) assisting residents and clients with personal
1417	1417	hygiene;
1418	1418	(12) assisting residents and clients with dental
1419	1419	hygiene;
1420	1420	(13) recognizing appropriate food textures;
1421	1421	(14) using proper feeding techniques to assist
1422	1422	residents and clients with meals;
1423	1423	(15) addressing issues of PICA; and
1424	1424	(16) physical and nutritional management plans.
1425	1425	Sec. 555.026. MORTALITY REVIEW. (a) The executive
1426	1426	commissioner shall establish an independent mortality review
1427	1427	system to review the death of a person who, at the time of the
1428	1428	person's death, was a resident or client of a nursing home.
1429	1429	(b) A review under this section shall be conducted in
1430	1430	addition to any review conducted by the nursing home.
1431	1431	(c) The executive commissioner shall contract with a
1432	1432	patient safety organization certified in accordance with 42 C.F.R.
1433	1433	Part 3, as effective on January 20, 2009, to conduct independent
1434	1434	mortality reviews required by this section. The contract must
1435	1435	require the patient safety organization to conduct an independent
1436	1436	mortality review using a team consisting of:
1437	1437	(1) a physician with expertise regarding the medical
1438	1438	treatment of individuals with mental retardation;
1439	1439	(2) a registered nurse with expertise regarding the
1440	1440	medical treatment of individuals with mental retardation;
1441	1441	(3) a clinician or other professional with expertise
1442	1442	in the delivery of services and supports for individuals with
1443	1443	mental retardation; and
1444	1444	(4) any other appropriate person as provided by the
1445	1445	executive commissioner.
1446	1446	(d) A patient safety organization that performs an
1447	1447	independent mortality review shall submit to the department and the
1448	1448	commission's office of inspector general a report of the findings
1449	1449	of the mortality review.
1450	1450	(e) The department may use information from a mortality
1451	1451	review report only to advance statewide practices regarding the
1452	1452	treatment and care of individuals with mental retardation or other
1453	1453	disabilities.
1454	1454	(f) The department may release a summary or a statistical
1455	1455	compilation of data drawn from reports submitted under this section
1456	1456	only if the summary or statistical compilation does not contain
1457	1457	information that would permit the identification of an individual.
1458	1458	Sec. 555.027. MINIMUM EDUCATION REQUIREMENTS.
1459	1459	(1) a nursing home employee providing services to an
1460	1460	individual requiring long term care services must have a high
1461	1461	school diploma or GED equivalent.
1462	1462	(2) this does not apply to employees with advanced
1463	1463	degrees or licensed by a state board.
1464	1464	[Sections 555.027-555.050 reserved for expansion]
1465	1465	SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE
1466	1466	DEVELOPMENTAL CENTERS
1467	1467	Sec. 555.051. ESTABLISHMENT; PURPOSE. The office of
1468	1468	independent ombudsman is established for the purpose of
1469	1469	investigating, evaluating, and securing the rights of the residents
1470	1470	and clients of nursing homes. The office is administratively
1471	1471	attached to the department. The department shall provide
1472	1472	administrative support and resources to the office as necessary for
1473	1473	the office to perform its duties.
1474	1474	Sec. 555.052. INDEPENDENCE. The independent ombudsman in
1475	1475	the performance of the ombudsman's duties and powers under this
1476	1476	subchapter acts independently of the department.
1477	1477	Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. The
1478	1478	governor shall appoint the independent ombudsman.
1479	1479	Sec. 555.054. ASSISTANT OMBUDSMEN. The independent
1480	1480	ombudsman shall:
1481	1481	(1) hire assistant ombudsmen to perform, under the
1482	1482	direction of the independent ombudsman, the same duties and
1483	1483	exercise the same powers as the independent ombudsman; and
1484	1484	(2) station an assistant ombudsman at each state
1485	1485	developmental center.
1486	1486	Sec. 555.055. CONFLICT OF INTEREST. A person may not serve
1487	1487	as independent ombudsman or as an assistant ombudsman if the person
1488	1488	or the person's spouse:
1489	1489	(1) is employed by or participates in the management
1490	1490	of a business entity or other organization receiving funds from the
1491	1491	department;
1492	1492	(2) owns or controls, directly or indirectly, any
1493	1493	interest in a business entity or other organization receiving funds
1494	1494	from the department; or
1495	1495	(3) is required to register as a lobbyist under
1496	1496	Chapter 305, Government Code, because of the person's activities or
1497	1497	compensation on behalf of a profession related to the operation of
1498	1498	the department.
1499	1499	Sec. 555.056. REPORT. (a) The independent ombudsman shall
1500	1500	submit on a biannual basis to the governor, the lieutenant
1501	1501	governor, and the speaker of the house of representatives a report
1502	1502	that is both aggregated and disaggregated by individual state
1503	1503	developmental center and describes:
1504	1504	(1) the work of the independent ombudsman;
1505	1505	(2) the results of any review or investigation
1506	1506	undertaken by the independent ombudsman, including reviews or
1507	1507	investigation of services contracted by the department; and
1508	1508	(3) any recommendations that the independent
1509	1509	ombudsman has in relation to the duties of the independent
1510	1510	ombudsman.
1511	1511	(b) The independent ombudsman shall ensure that information
1512	1512	submitted in a report under Subsection (a) does not permit the
1513	1513	identification of an individual.
1514	1514	(c) The independent ombudsman shall immediately report to
1515	1515	the governor, lieutenant governor, and speaker of the house of
1516	1516	representatives any particularly serious or flagrant:
1517	1517	(1) case of abuse or injury of a resident or client
1518	1518	about which the independent ombudsman is made aware;
1519	1519	(2) problem concerning the administration of a nursing
1520	1520	home program or operation; or
1521	1521	(3) interference by a state developmental center, the
1522	1522	department, or the commission with an investigation conducted by
1523	1523	the independent ombudsman.
1524	1524	Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The
1525	1525	department shall allow any resident or client, authorized
1526	1526	representative of a resident or client, family member of a resident
1527	1527	or client, or other interested party to communicate with the
1528	1528	independent ombudsman or an assistant ombudsman. The
1529	1529	communication:
1530	1530	(1) may be in person, by mail, or by any other means;
1531	1531	and
1532	1532	(2) is confidential and privileged.
1533	1533	(b) The records of the independent ombudsman are
1534	1534	confidential, except that the independent ombudsman shall:
1535	1535	(1) share with the Department of Family and Protective
1536	1536	Services a communication that may involve the abuse, neglect, or
1537	1537	exploitation of a resident or client;
1538	1538	(2) share with the regulatory services division of the
1539	1539	department a communication that may involve a violation of an
1540	1540	ICF-MR standard or condition of participation; and
1541	1541	(3) disclose the ombudsman's nonprivileged records if
1542	1542	required by a court order on a showing of good cause.
1543	1543	(c) The independent ombudsman may make reports relating to
1544	1544	an investigation public after the investigation is complete but
1545	1545	only if the name and any other personally identifiable information
1546	1546	of a resident or client, authorized representative of a resident or
1547	1547	client, family member of a resident or client, state developmental
1548	1548	center, and state developmental center employee are redacted from
1549	1549	the report and remain confidential.
1550	1550	(d) The name, address, or other personally identifiable
1551	1551	information of a person who files a complaint with the office of
1552	1552	independent ombudsman, information generated by the office of
1553	1553	independent ombudsman in the course of an investigation, and
1554	1554	confidential records obtained by the office of independent
1555	1555	ombudsman are confidential and not subject to disclosure under
1556	1556	Chapter 552, Government Code, except as provided by this section.
1557	1557	Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The
1558	1558	independent ombudsman shall promote awareness among the public,
1559	1559	residents, clients, and state developmental center employees of:
1560	1560	(1) how the office may be contacted;
1561	1561	(2) the purpose of the office; and
1562	1562	(3) the services the office provides.
1563	1563	Sec. 555.059. DUTIES AND POWERS. (a) The independent
1564	1564	ombudsman shall:
1565	1565	(1) evaluate the delivery of services to residents and
1566	1566	clients to ensure that the rights of residents and clients are fully
1567	1567	observed;
1568	1568	(2) refer a complaint alleging the abuse, neglect, or
1569	1569	exploitation of a resident or client to the Department of Family and
1570	1570	Protective Services for investigation;
1571	1571	(3) refer a complaint alleging a possible violation of
1572	1572	a nursing home standard or condition of participation to the
1573	1573	regulatory services division of the department;
1574	1574	(4) refer a complaint alleging a criminal offense,
1575	1575	other than an allegation of abuse, neglect, or exploitation of a
1576	1576	resident or client, to the commission's office of inspector
1577	1577	general;
1578	1578	(5) conduct investigations of complaints, other than
1579	1579	complaints alleging criminal offenses or the abuse, neglect, or
1580	1580	exploitation of a resident or client, if the office determines
1581	1581	that:
1582	1582	(A) a resident or client or the resident's or
1583	1583	client's family may be in need of assistance from the office; or
1584	1584	(B) a complaint raises the possibility of a
1585	1585	systemic issue in the nursing home's provision of services;
1586	1586	(6) conduct an annual audit of each nursing homes 's
1587	1587	policies, practices, and procedures to ensure that each resident
1588	1588	and client is encouraged to exercise the resident's or client's
1589	1589	rights, including:
1590	1590	(A) the right to file a complaint; and
1591	1591	(B) the right to due process;
1592	1592	(7) prepare and deliver an annual report regarding the
1593	1593	findings of each audit to the:
1594	1594	(A) executive commissioner;
1595	1595	(B) commissioner;
1596	1596	(C) Aging and Disability Services Council;
1597	1597	(D) governor;
1598	1598	(E) lieutenant governor;
1599	1599	(F) speaker of the house of representatives;
1600	1600	(G) standing committees of the senate and house
1601	1601	of representatives with primary jurisdiction over state
1602	1602	developmental centers; and
1603	1603	(H) state auditor;
1604	1604	(8) require a nursing home to provide access to all
1605	1605	records, data, and other information under the control of the
1606	1606	center that the independent ombudsman determines is necessary to
1607	1607	investigate a complaint or to conduct an audit under this section;
1608	1608	(9) review all final reports produced by the
1609	1609	Department of Family and Protective Services and the regulatory
1610	1610	services division of the department regarding a complaint referred
1611	1611	by the independent ombudsman;
1612	1612	(10) provide assistance to a resident, client,
1613	1613	authorized representative of a resident or client, or family member
1614	1614	of a resident or client who the independent ombudsman determines is
1615	1615	in need of assistance, including advocating with an agency,
1616	1616	provider, or other person in the best interests of the resident or
1617	1617	client; and
1618	1618	(11) make appropriate referrals under any of the
1619	1619	duties and powers listed in this subsection.
1620	1620	(b) The independent ombudsman may apprise a person who is
1621	1621	interested in a resident's or client's welfare of the rights of the
1622	1622	resident or client.
1623	1623	(c) To assess whether a resident's or client's rights have
1624	1624	been violated, the independent ombudsman may, in any matter that
1625	1625	does not involve an alleged criminal offense or the abuse, neglect,
1626	1626	or exploitation of a resident or client, contact or consult with an
1627	1627	administrator, employee, resident, client, family member of a
1628	1628	resident or client, expert, or other individual in the course of the
1629	1629	investigation or to secure information.
1630	1630	(d) Notwithstanding any other provision of this chapter,
1631	1631	the independent ombudsman may not investigate an alleged criminal
1632	1632	offense or the alleged abuse, neglect, or exploitation of a
1633	1633	resident or client. The independent ombudsman shall refer an
1634	1634	allegation of abuse, neglect, or exploitation of a resident or
1635	1635	client to the Department of Family and Protective Services.
1636	1636	Sec. 555.060. RETALIATION PROHIBITED. The department, a
1637	1637	nursing home, or an employee of a nursing home may not retaliate
1638	1638	against a department employee or nursing home employee who in good
1639	1639	faith makes a complaint to the office of independent ombudsman or
1640	1640	cooperates with the office in an investigation.
1641	1641	Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall
1642	1642	establish a permanent, toll-free number for the purpose of
1643	1643	receiving any information concerning the violation of a right of a
1644	1644	resident or client.
1645	1645	(b) The office shall ensure that:
1646	1646	(1) the toll-free number is prominently displayed in
1647	1647	the main administration area of a nursing home and in each room in
1648	1648	which a resident lives or a client receives services; and
1649	1649	(2) a resident, a client, the authorized
1650	1650	representative of a resident, and a nursing home employee have
1651	1651	confidential access to a telephone for the purpose of calling the
1652	1652	toll-free number.
1653	1653	SECTION 42. Section 591.003, Health and Safety Code, is
1654	1654	amended by adding Subdivision (19-a) to read as follows:
1655	1655	(19-a) "State developmental center" has the meaning
1656	1656	provided by Section 531.002.
1657	1657	SECTION 43. Chapter 592, Health and Safety Code, is amended
1658	1658	by adding Subchapter E to read as follows:
1659	1659	SUBCHAPTER E. USE OF RESTRAINTS IN STATE DEVELOPMENTAL CENTER
1660	1660	Sec. 592.101. DEFINITION. In this subchapter, "executive
1661	1661	commissioner" means the executive commissioner of the Health and
1662	1662	Human Services Commission.
1663	1663	Sec. 592.102. USE OF RESTRAINTS. The executive
1664	1664	commissioner shall adopt rules to ensure that:
1665	1665	(1) a mechanical or physical restraint is not
1666	1666	administered to a resident of a nursing home unless the restraint
1667	1667	is:
1668	1668	(A) necessary to prevent imminent physical
1669	1669	injury to the resident or another; and
1670	1670	(B) the least restrictive restraint effective to
1671	1671	prevent imminent physical injury;
1672	1672	(2) the administration of a mechanical or physical
1673	1673	restraint to a resident of a nursing home ends immediately once the
1674	1674	imminent risk of physical injury abates; and
1675	1675	(3) a mechanical or physical restraint is not
1676	1676	administered to a resident of a nursing home as punishment or as
1677	1677	part of a behavior plan.
1678	1678	Sec. 592.103. STRAITJACKETS PROHIBITED. A person may not
1679	1679	use a straitjacket to restrain a resident of a nursing home.
1680	1680	Sec. 592.104. CONFLICT WITH OTHER LAW. To the extent of a
1681	1681	conflict between this subchapter and Chapter 322, this subchapter
1682	1682	controls.
1683	1683	SECTION 44. Section 48.252, Human Resources Code, is
1684	1684	amended by adding Subsection (d) to read as follows:
1685	1685	(d) If an investigation under this section reveals evidence
1686	1686	of the abuse, neglect, or exploitation of a resident or client of a
1687	1687	state developmental center as defined by Section 531.002, Health
1688	1688	and Safety Code, or the ICF-MR component of the Rio Grande State
1689	1689	Center, and a caseworker of the department or a supervisor of a
1690	1690	caseworker knows of the abuse, neglect, or exploitation is a
1691	1691	criminal offense, the caseworker or supervisor shall immediately
1692	1692	notify the Health and Human Services Commission's office of
1693	1693	inspector general and promptly provide the Health and Human
1694	1694	Services Commission's office of inspector general with a copy of
1695	1695	the department's investigation report.
1696	1696	SECTION 45. Subchapter G, Chapter 48, Human Resources Code,
1697	1697	is amended by adding Section 48.3015 to read as follows:
1698	1698	Sec. 48.3015. INVESTIGATION OF REPORTS IN A NURSING HOME.
1699	1699	(a) Notwithstanding Section 48.301, the department shall receive
1700	1700	and investigate reports of abuse, neglect, or exploitation of an
1701	1701	individual receiving services in nursing home.
1702	1702	(b) The executive commissioner shall adopt rules governing
1703	1703	investigations conducted under this section and the provision of
1704	1704	services as necessary to alleviate abuse, neglect, or exploitation.
1705	1705	SECTION 46. Section 161.052, Human Resources Code, is
1706	1706	amended by amending Subsection (b) and adding Subsection (e) to
1707	1707	read as follows:
1708	1708	(b) The executive commissioner shall prepare and by rule
1709	1709	adopt personnel standards. The executive commissioner shall adopt
1710	1710	personnel standards for direct care employees at nursing homes that
1711	1711	are designed to ensure the safety of and a high standard of care for
1712	1712	residents of a nursing home.
1713	1713	(e) Subject to the availability of funds, the department
1714	1714	shall prescribe the minimum salaries for employees at a nursing
1715	1715	home necessary to attract and maintain quality employees. The
1716	1716	commissioner shall ensure that policies regarding employees at
1717	1717	nursing homes are designed to reduce turnover and ensure continuity
1718	1718	of care for residents.
1719	1719	SECTION 47. Subchapter B, Chapter 161, Human Resources
1720	1720	Code, is amended by adding Section 161.033 to read as follows:
1721	1721	Sec. 161.033. REQUIREMENTS FOR LONG-RANGE PLAN. In
1722	1722	developing the long-range plan required by Section 533.032, Health
1723	1723	and Safety Code, the department shall:
1724	1724	(1) include strategies for effectively serving the
1725	1725	increasing number of state developmental center residents
1726	1726	receiving community-based care;
1727	1727	(2) describe initiatives for effectively implementing
1728	1728	the strategies required by Subdivision (1), including enhancing
1729	1729	community services to assist residents through the development of:
1730	1730	(A) affordable housing options;
1731	1731	(B) safety net and emergency services;
1732	1732	(C) specialized services for residents as the
1733	1733	residents age;
1734	1734	(D) support services for the aging caregiver
1735	1735	population; and
1736	1736	(E) improved monitoring of the health and safety
1737	1737	of recipients of community-based services;
1738	1738	(F) the shortage of nurses;
1739	1739	(G) prevention of acute care hospitalizations
1740	1740	for the medically frail, elderly, and mentally retarded;
1741	1741	(H) reduced turnover and ensure continuity of
1742	1742	care for residents; and
1743	1743	(I) increased wages to attract and maintain
1744	1744	quality personnel; and
1745	1745	(3) estimate the fiscal impact of each strategy and
1746	1746	initiative, including the impact on department funding and the
1747	1747	number of full-time equivalent department employees and the cost
1748	1748	implications to other health and human services agencies.
1749	1749	SECTION 48. Section 161.071, Human Resources Code, is
1750	1750	amended to read as follows:
1751	1751	Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
1752	1752	department is responsible for administering human services
1753	1753	programs for the aging and disabled, including:
1754	1754	(1) administering and coordinating programs to
1755	1755	provide community-based care and support services to promote
1756	1756	independent living for populations that would otherwise be
1757	1757	institutionalized;
1758	1758	(2) providing institutional care services, including
1759	1759	services through convalescent and nursing homes and related
1760	1760	institutions under Chapter 242, Health and Safety Code;
1761	1761	(3) providing and coordinating programs and services
1762	1762	for persons with disabilities, including programs for the
1763	1763	treatment, rehabilitation, or benefit of persons with
1764	1764	developmental disabilities or mental retardation;
1765	1765	(4) operating state facilities for the housing,
1766	1766	treatment, rehabilitation, or benefit of persons with
1767	1767	disabilities, including state schools for persons with mental
1768	1768	retardation;
1769	1769	(5) serving as the state unit on aging required by the
1770	1770	federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
1771	1771	and its subsequent amendments, including performing the general
1772	1772	functions under Section 101.022 to ensure:
1773	1773	(A) implementation of the federal Older
1774	1774	Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
1775	1775	subsequent amendments, including implementation of services and
1776	1776	volunteer opportunities under that Act for older residents of this
1777	1777	state through area agencies on aging;
1778	1778	(B) advocacy for residents of nursing facilities
1779	1779	through the office of the state long-term care ombudsman;
1780	1780	(C) fostering of the state and community
1781	1781	infrastructure and capacity to serve older residents of this state;
1782	1782	and
1783	1783	(D) availability of a comprehensive resource for
1784	1784	state government and the public on trends related to and services
1785	1785	and programs for an aging population;
1786	1786	(6) performing all licensing and enforcement
1787	1787	activities and functions related to long-term care facilities,
1788	1788	including licensing and enforcement activities related to
1789	1789	convalescent and nursing homes and related institutions under
1790	1790	Chapter 242, Health and Safety Code;
1791	1791	(7) performing all licensing and enforcement
1792	1792	activities related to assisted living facilities under Chapter 247,
1793	1793	Health and Safety Code;
1794	1794	(8) performing all licensing and enforcement
1795	1795	activities related to intermediate care facilities for persons with
1796	1796	mental retardation under Chapter 252, Health and Safety Code, other
1797	1797	than investigations of reported abuse, neglect, or exploitation;
1798	1798	(9) performing all licensing and enforcement
1799	1799	activities and functions related to home and community support
1800	1800	services agencies under Chapter 142, Health and Safety Code; and
1801	1801	(10) serving as guardian of the person or estate, or
1802	1802	both, for an incapacitated individual as provided by Subchapter E
1803	1803	of this chapter and Chapter XIII, Texas Probate Code.
1804	1804	SECTION 49. Subchapter D, Chapter 161, Human Resources
1805	1805	Code, is amended by adding Sections 161.076 and 161.077 to read as
1806	1806	follows:
1807	1807	Sec. 161.076. ON-SITE SURVEYS OF CERTAIN PROVIDERS. The
1808	1808	department may conduct an on-site survey in each nursing home. The
1809	1809	department shall conduct the survey in a manner consistent with
1810	1810	surveys conducted by the department under Section 142.009, Health
1811	1811	and Safety Code.
1812	1812	SECTION 50. The Legislature recognizes the importance of
1813	1813	ensuring quality care for individual requiring long term care
1814	1814	services in community based settings and other settings.
1815	1815	SECTION 51. DEFINITIONS. Section 261.404, Family Code;
1816	1816	Subchapter F, Chapter 411, Government Code; Section 252.122(a),
1817	1817	Health and Safety Code; Subtitle B, Title 7, Health and Safety Code;
1818	1818	Chapter 592, Health and Safety Code; Section 48.252, Human
1819	1819	Resources Code; Section 161.052, Human Resources Code; and
1820	1820	Subchapter B, Chapter 161, Human Resources Code are amended by
1821	1821	adding the definition as follows:
1822	1822	(1) "Individual requiring long term care services"
1823	1823	means an individual who is a person receiving services through a
1824	1824	Medicaid waiver.
1825	1825	(2) "Medicaid waiver" means a Medicaid wavier or
1826	1826	demonstration program authorized the Centers for Medicare and
1827	1827	Medicaid Services or in federal law including 1915(b) and 1915(c)
1828	1828	waivers.
1829	1829	(3) "Community based setting" means a location where
1830	1830	an individual requiring long term care services receives services
1831	1831	under a Medicaid waiver.
1832	1832	SECTION 52. Section 261.404, Family Code, is amended by
1833	1833	adding Subsection (b-1) to read as follow
1834	1834	(b-1) If an investigation under this section reveals
1835	1835	evidence of abuse, neglect, or exploitation of an individual
1836	1836	requiring long term care services, and a caseworker of the
1837	1837	department or a supervisor of a caseworker knows of the abuse,
1838	1838	neglect, or exploitation is a criminal offense, the caseworker or
1839	1839	supervisor shall immediately notify the Health and Human Services
1840	1840	Commission's office of inspector general and promptly provide the
1841	1841	Health and Human Services Commission's office of inspector general
1842	1842	with a copy of the department's investigation report.
1843	1843	SECTION 53. Subchapter F, Chapter 411, Government Code, is
1844	1844	amended by adding Section 411.1144 to read as follows:
1845	1845	Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD
1846	1846	INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS PROVIDING
1847	1847	SERVICES TO PERSONS REQUIRING LONG TERM CARE SERVICES. (a) The
1848	1848	Department of State Health Services and the Department of Aging and
1849	1849	Disability Services are authorized to obtain from the department
1850	1850	criminal history record information maintained by the department
1851	1851	that relates to a person:
1852	1852	(1) who is:
1853	1853	(A) an applicant for employment with the agency;
1854	1854	(B) an employee of the agency;
1855	1855	(C) a volunteer with the agency; or
1856	1856	(D) an applicant for a volunteer position with
1857	1857	the agency; and
1858	1858	(2) who would be employed to provide services under a
1859	1859	Medicaid waiver.
1860	1860	(b) Criminal history record information obtained by an
1861	1861	agency under Subsection (a) may not be released or disclosed to any
1862	1862	person except:
1863	1863	(1) on court order;
1864	1864	(2) with the consent of the person who is the subject
1865	1865	of the criminal history record information;
1866	1866	(3) for purposes of an administrative hearing held by
1867	1867	the agency concerning the person who is the subject of the criminal
1868	1868	history record information; or
1869	1869	(4) as provided by Subsection (c).
1870	1870	(c) An agency is not prohibited from releasing criminal
1871	1871	history record information obtained under Subsection (a) or (d) to
1872	1872	the person who is the subject of the criminal history record
1873	1873	information.
1874	1874	(d) Subject to Section 411.087, the Department of State
1875	1875	Health Services and the Department of Aging and Disability Services
1876	1876	are authorized to:
1877	1877	(1) obtain through the Federal Bureau of Investigation
1878	1878	criminal history record information maintained or indexed by that
1879	1879	bureau that pertains to a person described by Subsection (a);
1880	1880	(2) obtain from any other criminal justice agency in
1881	1881	this state criminal history record information maintained by that
1882	1882	criminal justice agency that relates to a person described by
1883	1883	Subsection (a); and
1884	1884	(3) obtain from any licensing board in this state
1885	1885	disciplinary information maintained by that licensing board that
1886	1886	relates to a person described by section (a).
1887	1887	SECTION 54. Subchapter B, Chapter 531, Government Code, is
1888	1888	amended by adding Section 531.02446 to read as follows:
1889	1889	Sec. 531.02446. SAFETY NET FOR COMMUNITY SERVICES. (a) In
1890	1890	this section, "state developmental center" has the meaning assigned
1891	1891	by Section 531.002, Health and Safety Code.
1892	1892	(b) The executive commissioner by rule shall develop safety
1893	1893	net protocols to prevent individuals with mental retardation
1894	1894	receiving services in the community from being placed in a nursing
1895	1895	home or state developmental center in an emergency situation.
1896	1896	(c) The executive commissioner shall ensure that the safety
1897	1897	net protocols are designed to provide for temporary, emergency
1898	1898	living arrangements for individuals at immediate risk of admittance
1899	1899	to a nursing home or state developmental center who after receiving
1900	1900	emergency care expects to return to community care.
1901	1901	SECTION 55. Subchapter C, Chapter 531, Government Code, is
1902	1902	amended by adding Section 531.1022 to read as follows:
1903	1903	Sec. 531.1022. ASSISTING CERTAIN INVESTIGATIONS BY LAW
1904	1904	ENFORCEMENT. (a) The office of inspector general shall employ and
1905	1905	commission peace officers for the sole purpose of assisting a state
1906	1906	or local law enforcement agency in the investigation of an alleged
1907	1907	criminal offense involving an individual requiring long term care
1908	1908	services. A peace officer employed and commissioned by the office
1909	1909	is a peace officer for purposes of Article 2.12, Code of Criminal
1910	1910	Procedure.
1911	1911	(b) The office of inspector general shall prepare a final
1912	1912	report for each investigation conducted under this section. The
1913	1913	office shall ensure that the report does not contain identifying
1914	1914	information of an individual mentioned in the report. The final
1915	1915	report must include:
1916	1916	(1) a summary of the activities performed by the
1917	1917	office of inspector general in conducting the investigation;
1918	1918	(2) a statement regarding whether the investigation
1919	1919	resulted in a finding that an alleged criminal offense was
1920	1920	committed; and
1921	1921	(3) a description of the alleged criminal offense that
1922	1922	was committed.
1923	1923	(c) The office of inspector general shall deliver the final
1924	1924	report to the:
1925	1925	(1) executive commissioner;
1926	1926	(2) commissioner of the Department of Aging and
1927	1927	Disability Services;
1928	1928	(3) commissioner of the Department of Family and
1929	1929	Protective Services;
1930	1930	(4) Aging and Disability Services Council;
1931	1931	(5) governor;
1932	1932	(6) lieutenant governor;
1933	1933	(7) speaker of the house of representatives;
1934	1934	(8) standing committees of the senate and house of
1935	1935	representatives with primary jurisdiction over state developmental
1936	1936	centers; and
1937	1937	(9) state auditor.
1938	1938	(d) A final report regarding an investigation is subject to
1939	1939	required disclosure under Chapter 552. All information and
1940	1940	materials compiled by the office of inspector general in connection
1941	1941	with an investigation are confidential, and not subject to
1942	1942	disclosure under Chapter 552, and not subject to disclosure,
1943	1943	discovery, subpoena, or other means of legal compulsion for their
1944	1944	release to anyone other than the office or its employees or agents
1945	1945	involved in the investigation conducted by the office, except that
1946	1946	this information may be disclosed to the office of the attorney
1947	1947	general, the state auditor's office, and law enforcement agencies.
1948	1948	(e) The office of inspector general shall prepare an annual
1949	1949	status report of its activities under this section. The annual
1950	1950	report may not contain identifying information of an individual
1951	1951	mentioned in the report. The annual status report must include
1952	1952	information that is aggregated and disaggregated by individual
1953	1953	state developmental center or the ICF-MR component of the Rio
1954	1954	Grande State Center regarding:
1955	1955	(1) the number and type of alleged offenses
1956	1956	investigated by the office;
1957	1957	(2) the number and type of alleged offenses involving
1958	1958	an person providing services under a Medicaid waiver;
1959	1959	(3) the relationship of an alleged victim to an
1960	1960	alleged perpetrator; and
1961	1961	(4) the number of investigations conducted that
1962	1962	involve the suicide, death, or hospitalization of an alleged
1963	1963	victim.
1964	1964	(f) The office of inspector general shall submit the annual
1965	1965	status report to the:
1966	1966	(1) executive commissioner;
1967	1967	(2) commissioner of the Department of Aging and
1968	1968	Disability Services;
1969	1969	(3) commissioner of the Department of Family and
1970	1970	Protective Services;
1971	1971	(4) Aging and Disability Services Council;
1972	1972	(5) Family and Protective Services Council;
1973	1973	(6) governor;
1974	1974	(7) lieutenant governor;
1975	1975	(8) speaker of the house of representatives;
1976	1976	(9) standing committees of the senate and house of
1977	1977	representatives with primary jurisdiction over state developmental
1978	1978	centers;
1979	1979	(10) state auditor; and
1980	1980	(11) comptroller.
1981	1981	(g) An annual status report submitted under this section is
1982	1982	public information under Chapter 552.
1983	1983	SECTION 56. Section 252.122(a), Health and Safety Code, is
1984	1984	amended to read as follows:
1985	1985	(a) A person, including an owner or employee of a facility,
1986	1986	who has cause to believe that the physical or mental health or
1987	1987	welfare of a resident has been or may be adversely affected by abuse
1988	1988	[or], neglect, or exploitation caused by another person shall
1989	1989	report the abuse or neglect to the Department of Family and
1990	1990	Protective Services [department], to a designated agency, or to
1991	1991	both the Department of Family and Protective Services [department]
1992	1992	and the designated agency, as specified in [department] rules
1993	1993	adopted by the Department of Family and Protective Services.
1994	1994	SECTION 57. Section 252.124(b), Health and Safety Code, is
1995	1995	amended to read as follows:
1996	1996	(b) A local or state law enforcement agency that receives a
1997	1997	report of abuse [or], neglect, or exploitation shall refer the
1998	1998	report to the Department of Family and Protective Services
1999	1999	[department] or the designated agency.
2000	2000	SECTION 58. Sections 252.125(a), (c), (d), (e), (f), and
2001	2001	(g), Health and Safety Code, are amended to read as follows:
2002	2002	(a) The Department of Family and Protective Services
2003	2003	[department] or the designated agency shall make a thorough
2004	2004	investigation promptly after receiving either the oral or written
2005	2005	report.
2006	2006	(c) In the investigation, the Department of Family and
2007	2007	Protective Services [department] or the designated agency shall
2008	2008	determine:
2009	2009	(1) the nature, extent, and cause of the abuse or
2010	2010	neglect;
2011	2011	(2) the identity of the person responsible for the
2012	2012	abuse [or], neglect, or exploitation;
2013	2013	(3) the names and conditions of the other residents;
2014	2014	(4) an evaluation of the persons responsible for the
2015	2015	care of the residents;
2016	2016	(5) the adequacy of the facility environment; and
2017	2017	(6) any other information required by the Department
2018	2018	of Family and Protective Services [department].
2019	2019	(d) The investigation may include a visit to the resident's
2020	2020	facility and an interview with the resident, if considered
2021	2021	appropriate by the Department of Family and Protective Services
2022	2022	[department].
2023	2023	(e) If the Department of Family and Protective Services
2024	2024	[department] attempts to carry out an on-site investigation and it
2025	2025	is shown that admission to the facility or any place where a
2026	2026	resident is located cannot be obtained, a probate or county court
2027	2027	shall order the person responsible for the care of the resident or
2028	2028	the person in charge of a place where the resident is located to
2029	2029	allow admission for the investigation and any interview with the
2030	2030	resident.
2031	2031	(f) Before the completion of the investigation, the
2032	2032	Department of Family and Protective Services [department] shall
2033	2033	file a petition for temporary care and protection of the resident if
2034	2034	the Department of Family and Protective Services [department]
2035	2035	determines that immediate removal is necessary to protect the
2036	2036	resident from further abuse [or], neglect, or exploitation.
2037	2037	(g) The Department of Family and Protective Services
2038	2038	[department] or the designated agency shall make a complete written
2039	2039	report of the investigation and submit the report and its
2040	2040	recommendations to the district attorney and the appropriate law
2041	2041	enforcement agency and, if necessary, to the Department of Family
2042	2042	and Protective Services [department] on the Department of Family
2043	2043	and Protective Services' [department's] request.
2044	2044	SECTION 59. Section 252.126, Health and Safety Code, is
2045	2045	amended to read as follows:
2046	2046	Sec. 252.126. CONFIDENTIALITY. A report, record, or
2047	2047	working paper used or developed in an investigation made under this
2048	2048	subchapter is confidential and may be disclosed only for purposes
2049	2049	consistent with the rules adopted by the executive commissioner of
2050	2050	the Health and Human Services Commission [board] or the designated
2051	2051	agency.
2052	2052	SECTION 60. Section 252.129, Health and Safety Code, is
2053	2053	amended by adding Subsection (d) to read as follows:
2054	2054	(d) The department and the Department of Family and
2055	2055	Protective Services shall cooperate to ensure that the central
2056	2056	registry required by this section accurately includes reported
2057	2057	cases of resident abuse and neglect.
2058	2058	SECTION 61. Sections 252.134(a), (b), (c), (d), and (e),
2059	2059	Health and Safety Code, are amended to read as follows:
2060	2060	(a) A facility licensed under this chapter shall submit a
2061	2061	report to the Department of Family and Protective Services
2062	2062	[department] concerning the death of:
2063	2063	(1) a resident of the facility; and
2064	2064	(2) a former resident that occurs [24] 72 hours or less
2065	2065	after the former resident is transferred from the facility to a
2066	2066	hospital.
2067	2067	(b) The report must be submitted not later than the 10th
2068	2068	working day after the last day of each month in which a resident of
2069	2069	the facility dies. The facility must make the report on a form
2070	2070	prescribed by the Department of Family and Protective Services
2071	2071	[department]. The report must contain the name and social security
2072	2072	number of the deceased.
2073	2073	(c) The Department of Family and Protective Services
2074	2074	[department] shall correlate reports under this section with death
2075	2075	certificate information to develop data relating to the:
2076	2076	(1) name and age of the deceased;
2077	2077	(2) official cause of death listed on the death
2078	2078	certificate;
2079	2079	(3) date, time, and place of death; and
2080	2080	(4) name and address of the facility in which the
2081	2081	deceased resided.
2082	2082	(d) Unless specified by rules adopted by the executive
2083	2083	commissioner of the Health and Human Services Commission [board
2084	2084	rule], a record under this section is confidential and not subject
2085	2085	to the provisions of Chapter 552, Government Code.
2086	2086	(e) The Department of Family and Protective Services
2087	2087	[department] shall develop statistical information on official
2088	2088	causes of death to determine patterns and trends of incidents of
2089	2089	death among persons [with mental retardation and related
2090	2090	conditions] requiring long term care services and in [specific
2091	2091	facilities] community based settings. Information developed under
2092	2092	this subsection is not confidential.
2093	2093	SECTION 62. Subchapter B, Chapter 551, Health and Safety
2094	2094	Code, is amended by adding Section 551.0225 to read as follows:
2095	2095	Sec. 551.0225. POWERS AND DUTIES OF PROVIDERS OF SERVICES
2096	2096	UNDER MEDICAID WAIVER. (a) The director of a provider of services
2097	2097	under a Medicaid waiver is the administrative head of the community
2098	2098	based services.
2099	2099	(b) The director of provider of services under a Medicaid
2100	2100	waiver has the custody of and responsibility to care for the
2101	2101	buildings, grounds, furniture, and other property relating to the
2102	2102	community based services.
2103	2103	(c) The director of a provider of services under a Medicaid
2104	2104	waiver:
2105	2105	(1) oversee the admission and discharge of individuals
2106	2106	requiring long term care services;
2107	2107	(2) keep a register of all individuals requiring long
2108	2108	term care services admitted to or discharged from the community
2109	2109	based setting;
2110	2110	(3) supervise repairs and improvements to the
2111	2111	community based setting;
2112	2112	(4) ensure that community based setting money is spent
2113	2113	judiciously and economically;
2114	2114	(5) keep an accurate and detailed account of all money
2115	2115	received and spent, stating the source of the money and on whom and
2116	2116	the purpose for which the money is spent;
2117	2117	(6) keep a full record of the community based setting's
2118	2118	operations; and
2119	2119	(7) work to:
2120	2120	(i) reduce the turnover rate of the
2121	2121	providers of services under Medicaid waivers;
2122	2122	(ii) develop and implement a training and
2123	2123	continuing education program for the providers of services under
2124	2124	Medicaid waivers; and
2125	2125	(iii) reduce incidences of abuse, neglect
2126	2126	and exploitation of individuals requiring long term care services.
2127	2127	(d) In accordance with departmental rules and operating
2128	2128	procedures, the director of a provider of services under a Medicaid
2129	2129	waiver:
2130	2130	(1) establish policy to govern the a provider of
2131	2131	services under a Medicaid waiver that the director considers will
2132	2132	best promote the residents' interest and welfare;
2133	2133	(2) hire subordinate officers, teachers, and other
2134	2134	employees and set their salaries, in the absence of other law; and
2135	2135	(3) dismiss a subordinate officer, teacher, or
2136	2136	employee.
2137	2137	SECTION 63. Subtitle B, Title 7, Health and Safety Code, is
2138	2138	amended by adding Chapter 555 to read as follows:
2139	2139	Sec. 555.022. DRUG TESTING; POLICY. (a) The executive
2140	2140	commissioner by rule shall adopt a policy regarding random testing
2141	2141	and reasonable suspicion testing for the illegal use of drugs by a
2142	2142	provider of services under a Medicaid waiver.
2143	2143	(b) The director of a provider of services under a Medicaid
2144	2144	waiver shall enforce the policy adopted under Subsection (a) by
2145	2145	performing necessary drug testing of the nursing home employees for
2146	2146	the use of a controlled substance as defined by Section 481.002.
2147	2147	(c) Testing under this section may be performed on a random
2148	2148	basis or on reasonable suspicion of the use of a controlled
2149	2149	substance.
2150	2150	(d) For purposes of this section, a report made under
2151	2151	Section 555.023 is considered reasonable suspicion of the use of a
2152	2152	controlled substance.
2153	2153	Sec. 555.023. REPORTS OF ILLEGAL DRUG USE; POLICY. The
2154	2154	executive commissioner by rule shall adopt a policy requiring a
2155	2155	provider of services under a Medicaid waiver who knows or
2156	2156	reasonably suspects that another a provider of services under a
2157	2157	Medicaid waiver is illegally using or under the influence of a
2158	2158	controlled substance, as defined by Section 481.002, to report that
2159	2159	knowledge or reasonable suspicion to the director of a provider of
2160	2160	services under a Medicaid waiver.
2161	2161	Sec. 555.024. PROVIDER OF SERVICES UNDER A MEDICAID WAIVER
2162	2162	TRAINING. (a) Before a provider of services under a Medicaid
2163	2163	waiver begins to perform the employee's duties without direct
2164	2164	supervision, the department shall provide the employee with
2165	2165	competency training and a course of instruction about the general
2166	2166	duties of a provider of services under a Medicaid waiver. The
2167	2167	department shall ensure the basic provider competency course
2168	2168	focuses on:
2169	2169	(1) the uniqueness of the individuals the nursing home
2170	2170	serves including;
2171	2171	(a) the medically frail and elderly;
2172	2172	(b) individuals with mental retardation;
2173	2173	(c) individuals with physical or mental
2174	2174	disabilities; and
2175	2175	(c) children requiring long term care services;
2176	2176	(2) techniques for improving quality of life for and
2177	2177	promoting the health and safety of the medically fragile and
2178	2178	elderly, individuals with mental retardation, children requiring
2179	2179	long term care services, and individuals with physical or mental
2180	2180	disabilities; and
2181	2181	(3) the conduct expected of providers of services
2182	2182	under a Medicaid waiver.
2183	2183	(b) The department shall ensure the training required by
2184	2184	Subsection (a) provides instruction and information regarding the
2185	2185	following topics:
2186	2186	(1) the general operation and layout of the community
2187	2187	based setting, including armed intruder lockdown procedures;
2188	2188	(2) an introduction to mental retardation, elderly
2189	2189	physical and mental disabilities, autism spectrum disorder, and
2190	2190	traumatic brain injury;
2191	2191	(3) an introduction to mental illness and dual
2192	2192	diagnosis;
2193	2193	(4) the rights of individuals with disabilities who
2194	2194	receive services from the department;
2195	2195	(5) respecting personal choices made by individuals
2196	2196	requiring long term care services;
2197	2197	(6) the safe and proper use of restraints and
2198	2198	medications;
2199	2199	(7) recognizing and reporting:
2200	2200	(A) abuse, neglect, and exploitation of
2201	2201	individuals requiring long term care services;
2202	2202	(B) unusual incidents;
2203	2203	(C) reasonable suspicion of illegal drug use in
2204	2204	the workplace;
2205	2205	(D) workplace violence; or
2206	2206	(E) sexual harassment in the workplace;
2207	2207	(8) preventing and treating infection;
2208	2208	(9) first aid;
2209	2209	(10) cardiopulmonary resuscitation;
2210	2210	(11) the Health Insurance Portability and
2211	2211	Accountability Act of 1996 (29 U.S.C. Section 1181 et seq.); and
2212	2212	(12) civil rights of providers of services under a
2213	2213	Medicaid wavier.
2214	2214	(c) In addition to the training required by Subsection (a)
2215	2215	and before a direct care provider of services under a Medicaid
2216	2216	waiver begins to perform the direct care employee's duties without
2217	2217	direct supervision, the department shall provide a direct care
2218	2218	provider with 40 hours of training and instructional information
2219	2219	and 8 hours annually of continuing education regarding the
2220	2220	following topics:
2221	2221	(1) prevention and management of aggressive behavior;
2222	2222	(2) observing and reporting changes in behavior,
2223	2223	appearance, or health of residents and clients;
2224	2224	(3) positive behavior support;
2225	2225	(4) emergency response;
2226	2226	(5) person-directed plans and self-determination;
2227	2227	(6) seizure safety;
2228	2228	(7) techniques for:
2229	2229	(A) lifting;
2230	2230	(B) positioning; and
2231	2231	(C) movement and mobility;
2232	2232	(8) working with aging residents and clients;
2233	2233	(9) assisting residents and clients:
2234	2234	(A) who have a visual impairment;
2235	2235	(B) who have a hearing deficit;
2236	2236	(C) who require the use of adaptive devices and
2237	2237	specialized equipment; or
2238	2238	(D) who have a physical or mental disability;
2239	2239	(10) communicating with individuals requiring long
2240	2240	term care services who use augmentative and alternative devices for
2241	2241	communication;
2242	2242	(11) assisting individuals requiring long term care
2243	2243	services with personal hygiene;
2244	2244	(12) assisting individuals requiring long term care
2245	2245	services with dental hygiene;
2246	2246	(13) recognizing appropriate food textures;
2247	2247	(14) using proper feeding techniques to assist
2248	2248	individuals requiring long term care services with meals;
2249	2249	(15) addressing issues of PICA; and
2250	2250	(16) physical and nutritional management plans.
2251	2251	Sec. 555.026. MORTALITY REVIEW. (a) The executive
2252	2252	commissioner shall establish an independent mortality review
2253	2253	system to review the death of a person who, at the time of the
2254	2254	person's death, was an individuals requiring long term care
2255	2255	services.
2256	2256	(b) A review under this section shall be conducted in
2257	2257	addition to any review conducted by the provider of services under a
2258	2258	Medicaid waiver.
2259	2259	(c) The executive commissioner shall contract with a
2260	2260	patient safety organization certified in accordance with 42 C.F.R.
2261	2261	Part 3, as effective on January 20, 2009, to conduct independent
2262	2262	mortality reviews required by this section. The contract must
2263	2263	require the patient safety organization to conduct an independent
2264	2264	mortality review using a team consisting of:
2265	2265	(1) a physician with expertise regarding the medical
2266	2266	treatment of individuals with mental retardation;
2267	2267	(2) a registered nurse with expertise regarding the
2268	2268	medical treatment of individuals with mental retardation;
2269	2269	(3) a clinician or other professional with expertise
2270	2270	in the delivery of services and supports for individuals with
2271	2271	mental retardation; and
2272	2272	(4) any other appropriate person as provided by the
2273	2273	executive commissioner.
2274	2274	(d) A patient safety organization that performs an
2275	2275	independent mortality review shall submit to the department and the
2276	2276	commission's office of inspector general a report of the findings
2277	2277	of the mortality review.
2278	2278	(e) The department may use information from a mortality
2279	2279	review report only to advance statewide practices regarding the
2280	2280	treatment and care of individuals with mental retardation or other
2281	2281	disabilities.
2282	2282	(f) The department may release a summary or a statistical
2283	2283	compilation of data drawn from reports submitted under this section
2284	2284	only if the summary or statistical compilation does not contain
2285	2285	information that would permit the identification of an individual.
2286	2286	Sec. 555.027. MINIMUM EDUCATION REQUIREMENTS.
2287	2287	(1) a provider of services under a Medicaid waiver
2288	2288	must have a high school diploma or GED equivalent.
2289	2289	(2) this does not apply to employees with advanced
2290	2290	degrees or licensed by a state board.
2291	2291	[Sections 555.027-555.050 reserved for expansion]
2292	2292	SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE
2293	2293	DEVELOPMENTAL CENTERS
2294	2294	Sec. 555.051. ESTABLISHMENT; PURPOSE. The office of
2295	2295	independent ombudsman is established for the purpose of
2296	2296	investigating, evaluating, and securing the rights of the
2297	2297	individuals requiring long term care services. The office is
2298	2298	administratively attached to the department. The department shall
2299	2299	provide administrative support and resources to the office as
2300	2300	necessary for the office to perform its duties.
2301	2301	Sec. 555.052. INDEPENDENCE. The independent ombudsman in
2302	2302	the performance of the ombudsman's duties and powers under this
2303	2303	subchapter acts independently of the department.
2304	2304	Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. The
2305	2305	governor shall appoint the independent ombudsman.
2306	2306	Sec. 555.054. ASSISTANT OMBUDSMEN. The independent
2307	2307	ombudsman shall:
2308	2308	(1) hire assistant ombudsmen to perform, under the
2309	2309	direction of the independent ombudsman, the same duties and
2310	2310	exercise the same powers as the independent ombudsman; and
2311	2311	(2) station an assistant ombudsman at each state
2312	2312	developmental center.
2313	2313	Sec. 555.055. CONFLICT OF INTEREST. A person may not serve
2314	2314	as independent ombudsman or as an assistant ombudsman if the person
2315	2315	or the person's spouse:
2316	2316	(1) is employed by or participates in the management
2317	2317	of a business entity or other organization receiving funds from the
2318	2318	department;
2319	2319	(2) owns or controls, directly or indirectly, any
2320	2320	interest in a business entity or other organization receiving funds
2321	2321	from the department; or
2322	2322	(3) is required to register as a lobbyist under
2323	2323	Chapter 305, Government Code, because of the person's activities or
2324	2324	compensation on behalf of a profession related to the operation of
2325	2325	the department.
2326	2326	Sec. 555.056. REPORT. (a) The independent ombudsman shall
2327	2327	submit on a biannual basis to the governor, the lieutenant
2328	2328	governor, and the speaker of the house of representatives a report
2329	2329	that is both aggregated and disaggregated by individual state
2330	2330	developmental center and describes:
2331	2331	(1) the work of the independent ombudsman;
2332	2332	(2) the results of any review or investigation
2333	2333	undertaken by the independent ombudsman, including reviews or
2334	2334	investigation of services contracted by the department; and
2335	2335	(3) any recommendations that the independent
2336	2336	ombudsman has in relation to the duties of the independent
2337	2337	ombudsman.
2338	2338	(b) The independent ombudsman shall ensure that information
2339	2339	submitted in a report under Subsection (a) does not permit the
2340	2340	identification of an individual.
2341	2341	(c) The independent ombudsman shall immediately report to
2342	2342	the governor, lieutenant governor, and speaker of the house of
2343	2343	representatives any particularly serious or flagrant:
2344	2344	(1) case of abuse or injury of a resident or client
2345	2345	about which the independent ombudsman is made aware;
2346	2346	(2) problem concerning the administration of a nursing
2347	2347	home program or operation; or
2348	2348	(3) interference by a state developmental center, the
2349	2349	department, or the commission with an investigation conducted by
2350	2350	the independent ombudsman.
2351	2351	Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The
2352	2352	department shall allow any resident or client, authorized
2353	2353	representative of a resident or client, family member of a resident
2354	2354	or client, or other interested party to communicate with the
2355	2355	independent ombudsman or an assistant ombudsman. The
2356	2356	communication:
2357	2357	(1) may be in person, by mail, or by any other means;
2358	2358	and
2359	2359	(2) is confidential and privileged.
2360	2360	(b) The records of the independent ombudsman are
2361	2361	confidential, except that the independent ombudsman shall:
2362	2362	(1) share with the Department of Family and Protective
2363	2363	Services a communication that may involve the abuse, neglect, or
2364	2364	exploitation of a resident or client;
2365	2365	(2) share with the regulatory services division of the
2366	2366	department a communication that may involve a violation of an
2367	2367	ICF-MR standard or condition of participation; and
2368	2368	(3) disclose the ombudsman's nonprivileged records if
2369	2369	required by a court order on a showing of good cause.
2370	2370	(c) The independent ombudsman may make reports relating to
2371	2371	an investigation public after the investigation is complete but
2372	2372	only if the name and any other personally identifiable information
2373	2373	of a resident or client, authorized representative of a resident or
2374	2374	client, family member of a resident or client, state developmental
2375	2375	center, and state developmental center employee are redacted from
2376	2376	the report and remain confidential.
2377	2377	(d) The name, address, or other personally identifiable
2378	2378	information of a person who files a complaint with the office of
2379	2379	independent ombudsman, information generated by the office of
2380	2380	independent ombudsman in the course of an investigation, and
2381	2381	confidential records obtained by the office of independent
2382	2382	ombudsman are confidential and not subject to disclosure under
2383	2383	Chapter 552, Government Code, except as provided by this section.
2384	2384	Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The
2385	2385	independent ombudsman shall promote awareness among the public,
2386	2386	residents, clients, and state developmental center employees of:
2387	2387	(1) how the office may be contacted;
2388	2388	(2) the purpose of the office; and
2389	2389	(3) the services the office provides.
2390	2390	Sec. 555.059. DUTIES AND POWERS. (a) The independent
2391	2391	ombudsman shall:
2392	2392	(1) evaluate the delivery of services to residents and
2393	2393	clients to ensure that the rights of residents and clients are fully
2394	2394	observed;
2395	2395	(2) refer a complaint alleging the abuse, neglect, or
2396	2396	exploitation of a resident or client to the Department of Family and
2397	2397	Protective Services for investigation;
2398	2398	(3) refer a complaint alleging a possible violation of
2399	2399	a community based setting standard or condition of participation to
2400	2400	the regulatory services division of the department;
2401	2401	(4) refer a complaint alleging a criminal offense,
2402	2402	other than an allegation of abuse, neglect, or exploitation of a
2403	2403	resident or client, to the commission's office of inspector
2404	2404	general;
2405	2405	(5) conduct investigations of complaints, other than
2406	2406	complaints alleging criminal offenses or the abuse, neglect, or
2407	2407	exploitation of a resident or client, if the office determines
2408	2408	that:
2409	2409	(A) a resident or client or the resident's or
2410	2410	client's family may be in need of assistance from the office; or
2411	2411	(B) a complaint raises the possibility of a
2412	2412	systemic issue in the provider of services under a Medicaid
2413	2413	waiver's provision of services;
2414	2414	(6) conduct an annual audit of each provider of
2415	2415	services under a Medicaid waiver policies, practices, and
2416	2416	procedures to ensure that each individual requiring long term care
2417	2417	services is encouraged to exercise the individual's rights,
2418	2418	including:
2419	2419	(A) the right to file a complaint; and
2420	2420	(B) the right to due process;
2421	2421	(7) prepare and deliver an annual report regarding the
2422	2422	findings of each audit to the:
2423	2423	(A) executive commissioner;
2424	2424	(B) commissioner;
2425	2425	(C) Aging and Disability Services Council;
2426	2426	(D) governor;
2427	2427	(E) lieutenant governor;
2428	2428	(F) speaker of the house of representatives;
2429	2429	(G) standing committees of the senate and house
2430	2430	of representatives with primary jurisdiction over state
2431	2431	developmental centers; and
2432	2432	(H) state auditor;
2433	2433	(8) require a provider of services under a Medicaid
2434	2434	waiver to provide access to all records, data, and other
2435	2435	information under the control of the center that the independent
2436	2436	ombudsman determines is necessary to investigate a complaint or to
2437	2437	conduct an audit under this section;
2438	2438	(9) review all final reports produced by the
2439	2439	Department of Family and Protective Services and the regulatory
2440	2440	services division of the department regarding a complaint referred
2441	2441	by the independent ombudsman;
2442	2442	(10) provide assistance to a resident, client,
2443	2443	authorized representative of a resident or client, or family member
2444	2444	of a resident or client who the independent ombudsman determines is
2445	2445	in need of assistance, including advocating with an agency,
2446	2446	provider, or other person in the best interests of the resident or
2447	2447	client; and
2448	2448	(11) make appropriate referrals under any of the
2449	2449	duties and powers listed in this subsection.
2450	2450	(b) The independent ombudsman may apprise a person who is
2451	2451	interested in a resident's or client's welfare of the rights of the
2452	2452	resident or client.
2453	2453	(c) To assess whether a resident's or client's rights have
2454	2454	been violated, the independent ombudsman may, in any matter that
2455	2455	does not involve an alleged criminal offense or the abuse, neglect,
2456	2456	or exploitation of a resident or client, contact or consult with an
2457	2457	administrator, employee, resident, client, family member of a
2458	2458	resident or client, expert, or other individual in the course of the
2459	2459	investigation or to secure information.
2460	2460	(d) Notwithstanding any other provision of this chapter,
2461	2461	the independent ombudsman may not investigate an alleged criminal
2462	2462	offense or the alleged abuse, neglect, or exploitation of a
2463	2463	resident or client. The independent ombudsman shall refer an
2464	2464	allegation of abuse, neglect, or exploitation of a resident or
2465	2465	client to the Department of Family and Protective Services.
2466	2466	Sec. 555.060. RETALIATION PROHIBITED. The department, or a
2467	2467	provider, or a person providing care to an individual requiring
2468	2468	long term care services against a that person who in good faith
2469	2469	makes a complaint to the office of independent ombudsman or
2470	2470	cooperates with the office in an investigation.
2471	2471	Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall
2472	2472	establish a permanent, toll-free number for the purpose of
2473	2473	receiving any information concerning the violation of a right of an
2474	2474	individual requiring long term care services.
2475	2475	(b) The office shall ensure that:
2476	2476	(1) the toll-free number is prominently displayed in
2477	2477	each room in which an individual requiring long term care services
2478	2478	lives or receives services; and
2479	2479	(2) an individual requiring long term care services,
2480	2480	the authorized representative of an individual requiring long term
2481	2481	care services, and a provider of services under a Medicaid waiver
2482	2482	have confidential access to a telephone for the purpose of calling
2483	2483	the toll-free number.
2484	2484	SECTION 64. Section 591.003, Health and Safety Code, is
2485	2485	amended by adding Subdivision (19-a) to read as follows:
2486	2486	(19-a) "State developmental center" has the meaning
2487	2487	provided by Section 531.002.
2488	2488	SECTION 65. Chapter 592, Health and Safety Code, is amended
2489	2489	by adding Subchapter E to read as follows:
2490	2490	SUBCHAPTER E. USE OF RESTRAINTS IN STATE DEVELOPMENTAL CENTER
2491	2491	Sec. 592.101. DEFINITION. In this subchapter, "executive
2492	2492	commissioner" means the executive commissioner of the Health and
2493	2493	Human Services Commission.
2494	2494	Sec. 592.102. USE OF RESTRAINTS. The executive
2495	2495	commissioner shall adopt rules to ensure that:
2496	2496	(1) a mechanical or physical restraint is not
2497	2497	administered to an individual requiring long term care services
2498	2498	unless the restraint is:
2499	2499	(A) necessary to prevent imminent physical
2500	2500	injury to the individual requiring long term care services or
2501	2501	another; and
2502	2502	(B) the least restrictive restraint effective to
2503	2503	prevent imminent physical injury;
2504	2504	(2) the administration of a mechanical or physical
2505	2505	restraint to an individual requiring long term care services ends
2506	2506	immediately once the imminent risk of physical injury abates; and
2507	2507	(3) a mechanical or physical restraint is not
2508	2508	administered to an individual requiring long term care services as
2509	2509	punishment or as part of a behavior plan.
2510	2510	Sec. 592.103. STRAITJACKETS PROHIBITED. A person may not
2511	2511	use a straitjacket to restrain an individual requiring long term
2512	2512	care services.
2513	2513	Sec. 592.104. CONFLICT WITH OTHER LAW. To the extent of a
2514	2514	conflict between this subchapter and Chapter 322, this subchapter
2515	2515	controls.
2516	2516	SECTION 66. Section 48.252, Human Resources Code, is
2517	2517	amended by adding Subsection (d) to read as follows:
2518	2518	(d) If an investigation under this section reveals evidence
2519	2519	of the abuse, neglect, or exploitation of an individual requiring
2520	2520	long term care services, and a caseworker of the department or a
2521	2521	supervisor of a caseworker knows of the abuse, neglect, or
2522	2522	exploitation is a criminal offense, the caseworker or supervisor
2523	2523	shall immediately notify the Health and Human Services Commission's
2524	2524	office of inspector general and promptly provide the Health and
2525	2525	Human Services Commission's office of inspector general with a copy
2526	2526	of the department's investigation report.
2527	2527	SECTION 67. Subchapter G, Chapter 48, Human Resources Code,
2528	2528	is amended by adding Section 48.3015 to read as follows:
2529	2529	Sec. 48.3015. INVESTIGATION OF REPORTS IN A COMMUNITY BASED
2530	2530	SETTING. (a) Notwithstanding Section 48.301, the department shall
2531	2531	receive and investigate reports of abuse, neglect, or exploitation
2532	2532	of an individual requiring long term care services.
2533	2533	(b) The executive commissioner shall adopt rules governing
2534	2534	investigations conducted under this section and the provision of
2535	2535	services as necessary to alleviate abuse, neglect, or exploitation.
2536	2536	SECTION 68. Section 161.052, Human Resources Code, is
2537	2537	amended by amending Subsection (b) and adding Subsection (e) to
2538	2538	read as follows:
2539	2539	(b) The executive commissioner shall prepare and by rule
2540	2540	adopt personnel standards. The executive commissioner shall adopt
2541	2541	personnel standards for providers of services under a Medicaid
2542	2542	waiver that are designed to ensure the safety of and a high standard
2543	2543	of care for residents of a nursing home.
2544	2544	(e) Subject to the availability of funds, the department
2545	2545	shall prescribe the minimum salaries for providers of services
2546	2546	under a Medicaid waiver necessary to attract and maintain quality
2547	2547	employees. The commissioner shall ensure that policies regarding
2548	2548	providers of services under a Medicaid waiver are designed to
2549	2549	reduce turnover and ensure continuity of care for individuals
2550	2550	requiring long term care services.
2551	2551	SECTION 69. Subchapter B, Chapter 161, Human Resources
2552	2552	Code, is amended by adding Section 161.033 to read as follows:
2553	2553	Sec. 161.033. REQUIREMENTS FOR LONG-RANGE PLAN. In
2554	2554	developing the long-range plan required by Section 533.032, Health
2555	2555	and Safety Code, the department shall:
2556	2556	(1) include strategies for effectively serving the
2557	2557	increasing number of state developmental center residents
2558	2558	receiving community-based care;
2559	2559	(2) describe initiatives for effectively implementing
2560	2560	the strategies required by Subdivision (1), including enhancing
2561	2561	community services to assist residents through the development of:
2562	2562	(A) affordable housing options;
2563	2563	(B) alternatives for serving children;
2564	2564	(C) safety net and emergency services;
2565	2565	(D) specialized services for residents as the
2566	2566	residents age;
2567	2567	(E) support services for the aging caregiver
2568	2568	population; and
2569	2569	(F) improved monitoring of the health and safety
2570	2570	of recipients of community-based services;
2571	2571	(G) the shortage of nurses;
2572	2572	(H) prevention of acute care hospitalizations;
2573	2573	(I) reduced turnover and ensure continuity of
2574	2574	care for residents; and
2575	2575	(J) increased wages to attract and maintain
2576	2576	quality personnel; and
2577	2577	(3) estimate the fiscal impact of each strategy and
2578	2578	initiative, including the impact on department funding and the
2579	2579	number of full-time equivalent department employees and the cost
2580	2580	implications to other health and human services agencies.
2581	2581	SECTION 70. Section 161.071, Human Resources Code, is
2582	2582	amended to read as follows:
2583	2583	Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
2584	2584	department is responsible for administering human services
2585	2585	programs for the aging and disabled, including:
2586	2586	(1) administering and coordinating programs to
2587	2587	provide community-based care and support services to promote
2588	2588	independent living for populations that would otherwise be
2589	2589	institutionalized;
2590	2590	(2) providing institutional care services, including
2591	2591	services through convalescent and nursing homes and related
2592	2592	institutions under Chapter 242, Health and Safety Code;
2593	2593	(3) providing and coordinating programs and services
2594	2594	for persons with disabilities, including programs for the
2595	2595	treatment, rehabilitation, or benefit of persons with
2596	2596	developmental disabilities or mental retardation;
2597	2597	(4) operating state facilities for the housing,
2598	2598	treatment, rehabilitation, or benefit of persons with
2599	2599	disabilities, including state schools for persons with mental
2600	2600	retardation;
2601	2601	(5) serving as the state unit on aging required by the
2602	2602	federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
2603	2603	and its subsequent amendments, including performing the general
2604	2604	functions under Section 101.022 to ensure:
2605	2605	(A) implementation of the federal Older
2606	2606	Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
2607	2607	subsequent amendments, including implementation of services and
2608	2608	volunteer opportunities under that Act for older residents of this
2609	2609	state through area agencies on aging;
2610	2610	(B) advocacy for residents of nursing facilities
2611	2611	through the office of the state long-term care ombudsman;
2612	2612	(C) fostering of the state and community
2613	2613	infrastructure and capacity to serve older residents of this state;
2614	2614	and
2615	2615	(D) availability of a comprehensive resource for
2616	2616	state government and the public on trends related to and services
2617	2617	and programs for an aging population;
2618	2618	(6) performing all licensing and enforcement
2619	2619	activities and functions related to long-term care facilities,
2620	2620	including licensing and enforcement activities related to
2621	2621	convalescent and nursing homes and related institutions under
2622	2622	Chapter 242, Health and Safety Code;
2623	2623	(7) performing all licensing and enforcement
2624	2624	activities related to assisted living facilities under Chapter 247,
2625	2625	Health and Safety Code;
2626	2626	(8) performing all licensing and enforcement
2627	2627	activities related to intermediate care facilities for persons with
2628	2628	mental retardation under Chapter 252, Health and Safety Code, other
2629	2629	than investigations of reported abuse, neglect, or exploitation;
2630	2630	(9) performing all licensing and enforcement
2631	2631	activities and functions related to home and community support
2632	2632	services agencies under Chapter 142, Health and Safety Code; and
2633	2633	(10) serving as guardian of the person or estate, or
2634	2634	both, for an incapacitated individual as provided by Subchapter E
2635	2635	of this chapter and Chapter XIII, Texas Probate Code.
2636	2636	SECTION 71. Subchapter D, Chapter 161, Human Resources
2637	2637	Code, is amended by adding Sections 161.076 and 161.077 to read as
2638	2638	follows:
2639	2639	Sec. 161.076. ON-SITE SURVEYS OF CERTAIN PROVIDERS. At
2640	2640	least every 12 months, the department shall conduct an on-site
2641	2641	survey in each group or foster home at which a home and
2642	2642	community-based services provider provides services to a person
2643	2643	with mental retardation. The department shall conduct the survey in
2644	2644	a manner consistent with surveys conducted by the department under
2645	2645	Section 142.009, Health and Safety Code.
2646	2646	Sec. 161.077. CHILDREN'S UNIT. (a) The department shall
2647	2647	establish a centralized unit at the department to oversee long-term
2648	2648	care and support for children with disabilities who receive
2649	2649	services from the department.
2650	2650	(b) The children's unit shall oversee the permanency
2651	2651	planning process required by Section 531.0245, Government Code, for
2652	2652	children with disabilities who reside in a facility operated or
2653	2653	licensed by the department.
2654	2654	SECTION 72. (a) Not later than December 1, 2009, the
2655	2655	Health and Human Services Commission's office of inspector general
2656	2656	shall begin employing and commissioning peace officers as required
2657	2657	by Section 531.1022, Government Code, as added by this Act.
2658	2658	(c) Not later than January 1, 2010, the Department of Aging
2659	2659	and Disability Services shall develop the training required by
2660	2660	Section 555.024, Health and Safety Code, as added by this Act.
2661	2661	(d) The Department of Aging and Disability Services shall
2662	2662	ensure that all center employees and direct care employees receive
2663	2663	the training required by Section 555.024, Health and Safety Code,
2664	2664	as added by this Act, regardless of when the employee was hired, not
2665	2665	later than September 1, 2010.
2666	2666	(e) Not later than December 1, 2009, the executive
2667	2667	commissioner of the Health and Human Services Commission shall
2668	2668	adopt rules as required by Section 555.022, Health and Safety Code,
2669	2669	as added by this Act.
2670	2670	(f) Not later than December 1, 2009, the executive
2671	2671	commissioner shall contract for mortality review services as
2672	2672	required by Section 555.026, Health and Safety Code, as added by
2673	2673	this Act.
2674	2674	(g) Not later than December 1, 2009, the governor shall
2675	2675	appoint the independent ombudsman as required by Section 555.053,
2676	2676	Health and Safety Code, as added by this Act.
2677	2677	(h) Not later than January 1, 2010, the executive
2678	2678	commissioner of the Health and Human Services Commission shall
2679	2679	review the use of restraints in state developmental centers and
2680	2680	adopt the rules required under Section 592.102, Health and Safety
2681	2681	Code, as added by this Act.
2682	2682	SECTION 73. As soon as possible after the effective date of
2683	2683	this Act, and subject to the availability of funds, the Department
2684	2684	of Aging and Disability Services shall hire additional direct care
2685	2685	employees at state developmental centers and increase the salaries
2686	2686	for all direct care employees as necessary to attract and maintain
2687	2687	quality employees.
2688	2688	SECTION 74. (a) Section 411.1144, Government Code, as
2689	2689	added by this Act, and Section 555.021, Health and Safety Code, as
2690	2690	added by this Act, apply only to background and criminal history
2691	2691	checks performed on or after the effective date of this Act.
2692	2692	(b) Not later than December 1, 2009, the executive
2693	2693	commissioner of the Health and Human Services Commission shall
2694	2694	adopt rules as required by Section 555.021, Health and Safety Code,
2695	2695	as added by this Act.
2696	2696	SECTION 75. (a) The change in law made by Section
2697	2697	551.022(e), Health and Safety Code, as added by this Act, and the
2698	2698	change in law made by Section 551.0225, Health and Safety Code, as
2699	2699	added by this Act, apply to the dismissal of an officer, teacher, or
2700	2700	other employee of a state developmental center hired on or after the
2701	2701	effective date of this Act.
2702	2702	(b) The dismissal of an officer, teacher, or other employee
2703	2703	of a state developmental center hired before the effective date of
2704	2704	this Act is governed by the law in effect when the officer, teacher,
2705	2705	or other employee was hired, and the former law is continued in
2706	2706	effect for that purpose.
2707	2707	SECTION 76. (a) Sections 593.042 and 593.052, Health and
2708	2708	Safety Code, as amended by this Act, apply only to an order for
2709	2709	commitment to a residential care facility based on an application
2710	2710	filed on or after the effective date of this Act.
2711	2711	(b) An order for commitment to a residential care facility
2712	2712	based on an application filed before the effective date of this Act
2713	2713	is governed by the law in effect at the time the application was
2714	2714	filed, and the former law is continued in effect for that purpose.
2715	2715	SECTION 77. This Act applies only to a report of suspected
2716	2716	abuse, neglect, or exploitation that is made on or after September
2717	2717	1, 2009. A report of suspected abuse, neglect, or exploitation that
2718	2718	is made before September 1, 2009, is governed by the law in effect
2719	2719	on the date the report was made, and that law is continued in effect
2720	2720	for that purpose.
2721	2721	SECTION 78. If before implementing any provision of this
2722	2722	Act a state agency determines that a waiver or authorization from a
2723	2723	federal agency is necessary for implementation of that provision,
2724	2724	the agency affected by the provision shall request the waiver or
2725	2725	authorization and may delay implementing that provision until the
2726	2726	waiver or authorization is granted.
2727	2727	SECTION 79. The changes in law made by this Act in amending
2728	2728	Chapter 252, Health and Safety Code, and Section 161.071, Human
2729	2729	Resources Code, and adding Sections 48.3015 and 161.076, Human
2730	2730	Resources Code, take effect September 1, 2009.
2731	2731	SECTION 80. Except as provided by Section 79 of this Act,
2732	2732	this Act takes effect immediately if it receives a vote of
2733	2733	two-thirds of all the members elected to each house, as provided by
2734	2734	Section 39, Article III, Texas Constitution. If this Act does not
2735	2735	receive the vote necessary for immediate effect, this Act takes
2736	2736	effect September 1, 2009.