Texas 2009 - 81st Regular

Texas Senate Bill SB277 Compare Versions

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1	1	By: Nelson, Uresti S.B. No. 277
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the Department of Family and Protective Services,
7	7	including protective services and investigations of alleged abuse,
8	8	neglect, or exploitation for certain adults who are elderly or
9	9	disabled; providing a criminal penalty.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subsection (a), Section 59.006, Finance Code, is
12	12	amended to read as follows:
13	13	(a) This section provides the exclusive method for
14	14	compelled discovery of a record of a financial institution relating
15	15	to one or more customers but does not create a right of privacy in a
16	16	record. This section does not apply to and does not require or
17	17	authorize a financial institution to give a customer notice of:
18	18	(1) a demand or inquiry from a state or federal
19	19	government agency authorized by law to conduct an examination of
20	20	the financial institution;
21	21	(2) a record request from a state or federal
22	22	government agency or instrumentality under statutory or
23	23	administrative authority that provides for, or is accompanied by, a
24	24	specific mechanism for discovery and protection of a customer
25	25	record of a financial institution, including a record request from
26	26	a federal agency subject to the Right to Financial Privacy Act of
27	27	1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
28	28	Internal Revenue Service under Section 1205, Internal Revenue Code
29	29	of 1986;
30	30	(3) a record request from or report to a government
31	31	agency arising out of the investigation or prosecution of a
32	32	criminal offense or the investigation of alleged abuse, neglect, or
33	33	exploitation of an elderly or disabled person in accordance with
34	34	Chapter 48, Human Resources Code;
35	35	(4) a record request in connection with a garnishment
36	36	proceeding in which the financial institution is garnishee and the
37	37	customer is debtor;
38	38	(5) a record request by a duly appointed receiver for
39	39	the customer;
40	40	(6) an investigative demand or inquiry from a state
41	41	legislative investigating committee;
42	42	(7) an investigative demand or inquiry from the
43	43	attorney general of this state as authorized by law other than the
44	44	procedural law governing discovery in civil cases; or
45	45	(8) the voluntary use or disclosure of a record by a
46	46	financial institution subject to other applicable state or federal
47	47	law.
48	48	SECTION 2. Section 411.114, Government Code, is amended to
49	49	read as follows:
50	50	Sec. 411.114. ACCESS TO CRIMINAL HISTORY RECORD
51	51	INFORMATION: DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY]
52	52	SERVICES. (a)(1) In this subsection:
53	53	(A) "Child," "child-care facility,"
54	54	"child-placing agency," and "family home" have the meanings
55	55	assigned by Section 42.002, Human Resources Code.
56	56	(B) "Elderly person" has the meaning assigned by
57	57	Section 48.002, Human Resources Code.
58	58	(C) "Maternity home" has the meaning assigned by
59	59	Section 249.001, Health and Safety Code.
60	60	(D) "Person with a disability" means a disabled
61	61	person as defined by Section 48.002, Human Resources Code.
62	62	(E) "Ward" has the meaning assigned by Section
63	63	601, Texas Probate Code.
64	64	(2) The Department of Family and Protective Services
65	65	shall obtain from the department criminal history record
66	66	information maintained by the department that relates to a person
67	67	who is:
68	68	(A) an applicant for a license, registration,
69	69	certification, or listing under Chapter 42, Human Resources Code,
70	70	or Chapter 249, Health and Safety Code;
71	71	(B) an owner, operator, or employee of or an
72	72	applicant for employment by a child-care facility, child-placing
73	73	agency, family home, or maternity home licensed, registered,
74	74	certified, or listed under Chapter 42, Human Resources Code, or
75	75	Chapter 249, Health and Safety Code;
76	76	(C) a person 14 years of age or older who will be
77	77	regularly or frequently working or staying in a child-care
78	78	facility, family home, or maternity home while children are being
79	79	provided care, other than a child in the care of the home or
80	80	facility;
81	81	(D) an applicant selected for a position with the
82	82	Department of Family and Protective Services, the duties of which
83	83	include direct delivery of protective services to children, elderly
84	84	persons, or persons with a disability;
85	85	(E) an employee of, an applicant for employment
86	86	with, or a volunteer or an applicant volunteer with a business
87	87	entity or person that contracts with the Department of Family and
88	88	Protective Services to provide direct delivery of protective
89	89	services to children, elderly persons, or persons with a
90	90	disability, if the person's duties or responsibilities include
91	91	direct contact with children, elderly persons, or persons with a
92	92	disability;
93	93	(F) a registered volunteer with the Department of
94	94	Family and Protective Services;
95	95	(G) a person providing or applying to provide
96	96	in-home, adoptive, or foster care for children in the care of the
97	97	Department of Family and Protective Services and other persons
98	98	living in the residence in which the child will reside;
99	99	(H) a Department of Family and Protective
100	100	Services employee who is engaged in the direct delivery of
101	101	protective services to children, elderly persons, or persons with a
102	102	disability;
103	103	(I) an alleged perpetrator in [a person who is
104	104	the subject of] a report the Department of Family and Protective
105	105	Services receives alleging that the person has abused, neglected,
106	106	or exploited a child, an elderly person, or a person with a
107	107	disability, provided that:
108	108	(i) the report alleges the person has
109	109	engaged in conduct that meets the statutory definition of abuse,
110	110	neglect, or exploitation under Chapter 261, Family Code, or Chapter
111	111	48, Human Resources Code; and
112	112	(ii) the person [who is the subject of the
113	113	report] is not also the victim of the alleged conduct;
114	114	(J) a person providing child care for a child who
115	115	is in the care of the Department of Family and Protective Services
116	116	and who is or will be receiving adoptive, foster, or in-home care;
117	117	(K) through a contract with a nonprofit
118	118	management center, an employee of, an applicant for employment
119	119	with, or a volunteer or an applicant volunteer with a nonprofit,
120	120	tax-exempt organization that provides any service that involves the
121	121	care of or access to a child [children], an elderly person
122	122	[persons], or a person [persons] with a disability; or
123	123	(L) an applicant for a child-care administrator
124	124	or child-placing agency administrator license under Chapter 43,
125	125	Human Resources Code.
126	126	(3) The Department of Family and Protective [and
127	127	Regulatory] Services is entitled to obtain from the department
128	128	criminal history record information maintained by the department
129	129	that relates to a person who is:
130	130	(A) a volunteer or applicant volunteer with a
131	131	local affiliate in this state of Big Brothers/Big Sisters of
132	132	America;
133	133	(B) a volunteer or applicant volunteer with the
134	134	"I Have a Dream/Houston" program;
135	135	(C) a volunteer or applicant volunteer with an
136	136	organization that provides court-appointed special advocates for
137	137	abused or neglected children;
138	138	(D) a person providing, at the request of the
139	139	child's parent, in-home care for a child who is the subject of a
140	140	report alleging the child has been abused or neglected;
141	141	(E) a volunteer or applicant volunteer with a
142	142	Texas chapter of the Make-a-Wish Foundation of America;
143	143	(F) a person providing, at the request of the
144	144	child's parent, in-home care for a child only if the person gives
145	145	written consent to the release and disclosure of the information;
146	146	(G) a child who is related to the caretaker, as
147	147	determined under Section 42.002, Human Resources Code, and who
148	148	resides in or is present in a child-care facility, family home, or
149	149	maternity home, other than a child described by Subdivision (2)(C),
150	150	or any other person who has unsupervised access to a child in the
151	151	care of a child-care facility, family home, or maternity home;
152	152	(H) an applicant for a position with the
153	153	Department of Family and Protective [and Regulatory] Services,
154	154	other than a position described by Subdivision (2)(D), regardless
155	155	of the duties of the position;
156	156	(I) a volunteer or applicant volunteer with the
157	157	Department of Family and Protective [and Regulatory] Services,
158	158	other than a registered volunteer, regardless of the duties to be
159	159	performed;
160	160	(J) a person providing or applying to provide
161	161	in-home, adoptive, or foster care for children to the extent
162	162	necessary to comply with Subchapter B, Chapter 162, Family Code;
163	163	(K) a Department of Family and Protective [and
164	164	Regulatory] Services employee, other than an employee described by
165	165	Subdivision (2)(H), regardless of the duties of the employee's
166	166	position;
167	167	(L) a relative of a child in the care of the
168	168	Department of Family and Protective [and Regulatory] Services, to
169	169	the extent necessary to comply with Section 162.007, Family Code;
170	170	(M) a person, other than an alleged perpetrator
171	171	in [the subject of] a report described in Subdivision (2)(I),
172	172	living in the residence in which the alleged victim of the report
173	173	resides;
174	174	(N) a contractor or an employee of a contractor
175	175	who delivers services to a ward of the Department of Protective and
176	176	Regulatory Services under a contract with the estate of the ward;
177	177	(O) a person who seeks unsupervised visits with a
178	178	ward of the Department of Protective and Regulatory Services,
179	179	including a relative of the ward; [or]
180	180	(P) an employee, volunteer, or applicant
181	181	volunteer of a children's advocacy center under Subchapter E,
182	182	Chapter 264, Family Code, including a member of the governing board
183	183	of a center; or
184	184	(Q) an employee of, an applicant for employment
185	185	with, or a volunteer or an applicant volunteer with an entity or
186	186	person that contracts with the Department of Family and Protective
187	187	Services and has access to confidential information in the
188	188	department's records, if the employee, applicant, volunteer, or
189	189	applicant volunteer has or will have access to that confidential
190	190	information.
191	191	(4) Subject to Section 411.087, the Department of
192	192	Family and Protective [and Regulatory] Services is entitled to:
193	193	(A) obtain through the Federal Bureau of
194	194	Investigation criminal history record information maintained or
195	195	indexed by that bureau that pertains to a person described by
196	196	Subdivision (2) or (3); and
197	197	(B) obtain from any other criminal justice agency
198	198	in this state criminal history record information maintained by
199	199	that criminal justice agency that relates to a person described by
200	200	Subdivision (2) or (3). Law enforcement entities shall expedite
201	201	the furnishing of such information to Department of Family and
202	202	Protective [and Regulatory] Services workers to ensure prompt
203	203	criminal background checks for the safety of alleged victims and
204	204	Department of Family and Protective [and Regulatory] Services
205	205	workers.
206	206	(5) The Department of Family and Protective [and
207	207	Regulatory] Services may not use the authority granted under this
208	208	section to harass an employee or volunteer. The executive
209	209	commissioner of the Health and Human Services Commission [Board of
210	210	Protective and Regulatory Services] shall adopt rules to prevent
211	211	the harassment of an employee or volunteer through the request and
212	212	use of criminal records.
213	213	(6) Criminal history record information obtained by
214	214	the Department of Family and Protective [and Regulatory] Services
215	215	under this subsection may not be released to any person except:
216	216	(A) on court order;
217	217	(B) with the consent of the person who is the
218	218	subject of the criminal history record information;
219	219	(C) for purposes of an administrative hearing
220	220	held by the Department of Family and Protective [and Regulatory]
221	221	Services concerning the person who is the subject of the criminal
222	222	history record information; or
223	223	(D) as provided by Subdivision (7).
224	224	(7) The Department of Family and Protective [and
225	225	Regulatory] Services is not prohibited from releasing criminal
226	226	history record information obtained under this subsection to:
227	227	(A) the person who is the subject of the criminal
228	228	history record information;
229	229	(B) a child-care facility, child-placing agency,
230	230	family home, or maternity home listed in Subdivision (2) that
231	231	employs or is considering employing the person who is the subject of
232	232	the criminal history record information;
233	233	(C) a person or business entity described by
234	234	Subdivision (2)(E) or (3) who uses or intends to use the services of
235	235	the volunteer or employs or is considering employing the person who
236	236	is the subject of the criminal history record information; [or]
237	237	(D) an adult who resides [residing] with an
238	238	alleged victim of abuse, neglect, or exploitation of a child,
239	239	elderly person, or person with a disability and who also resides
240	240	with the alleged perpetrator of that abuse, neglect, or
241	241	exploitation if:
242	242	(i) the alleged perpetrator [person who] is
243	243	the subject of the criminal history record information; and
244	244	(ii)[, if] the Department of Family and
245	245	Protective [and Regulatory] Services determines that the release of
246	246	information to the adult is necessary to ensure the safety or
247	247	welfare of the alleged victim [child, elderly person, or person
248	248	with a disability] or the adult; or
249	249	(E) an elderly or disabled person who is an
250	250	alleged victim of abuse, neglect, or exploitation and who resides
251	251	with the alleged perpetrator of that abuse, neglect, or
252	252	exploitation if:
253	253	(i) the alleged perpetrator is the subject
254	254	of the criminal history record information; and
255	255	(ii) the Department of Family and
256	256	Protective Services determines that the release of information to
257	257	the elderly or disabled person or adult is necessary to ensure the
258	258	safety or welfare of the elderly or disabled person.
259	259	(b) The failure or refusal to provide a complete set of
260	260	fingerprints or a complete name on request constitutes good cause
261	261	for dismissal or refusal to hire, as applicable, with regard to a
262	262	volunteer of or an employee or applicant for permanent or temporary
263	263	employment with the Department of Family and Protective [and
264	264	Regulatory] Services, or a facility, home, business, or other
265	265	entity, if the volunteer position, employment, or potential
266	266	employment involves direct interaction with or the opportunity to
267	267	interact and associate with children.
268	268	(c) The Department of Family and Protective [and
269	269	Regulatory] Services may charge an organization or person that
270	270	requests criminal history record information under Subsection
271	271	(a)(3) a fee in an amount necessary to cover the costs of obtaining
272	272	the information on the organization's or person's behalf.
273	273	SECTION 3. Subdivision (5), Subsection (a), Section 48.002,
274	274	Human Resources Code, is amended to read as follows:
275	275	(5) "Protective services" means the services
276	276	furnished by the department or by a protective services agency to an
277	277	elderly or disabled person who has been determined to be in a state
278	278	of abuse, neglect, or exploitation or to a relative or caretaker of
279	279	an elderly or disabled person if the department determines the
280	280	services are necessary to prevent the elderly or disabled person
281	281	from returning to a state of abuse, neglect, or exploitation. The
282	282	term does not include the services of the department or another
283	283	protective services agency in conducting an investigation
284	284	regarding alleged abuse, neglect, or exploitation of an elderly or
285	285	disabled person. These services may include social casework, case
286	286	management, and arranging for psychiatric and health evaluation,
287	287	home care, day care, social services, health care, respite
288	288	services, and other services consistent with this chapter.
289	289	SECTION 4. Subsection (a), Section 48.006, Human Resources
290	290	Code, is amended to read as follows:
291	291	(a) Subject to the availability of funds, the department
292	292	shall develop a community satisfaction survey that solicits
293	293	information regarding the department's performance with respect to
294	294	providing investigative and adult protective services. In each
295	295	region, the department shall send the survey at least biennially
296	296	[annually] to:
297	297	(1) stakeholders in the adult protective services
298	298	system, including local law enforcement agencies and prosecutors'
299	299	offices;
300	300	(2) protective services agencies, including nonprofit
301	301	agencies; and
302	302	(3) courts with jurisdiction over probate matters.
303	303	SECTION 5. Section 48.053, Human Resources Code, is amended
304	304	to read as follows:
305	305	Sec. 48.053. FALSE REPORT; PENALTY. (a) A person commits
306	306	an offense if the person knowingly or intentionally reports
307	307	information as provided in this chapter that the person knows is
308	308	false or lacks factual foundation.
309	309	(b) An offense under this section is a Class A [B]
310	310	misdemeanor.
311	311	SECTION 6. Section 48.152, Human Resources Code, is amended
312	312	to read as follows:
313	313	Sec. 48.152. INVESTIGATION. (a) An investigation by the
314	314	department or a state agency shall include an interview with the
315	315	elderly or disabled person, if appropriate, and with persons
316	316	thought to have knowledge of the circumstances. If the elderly or
317	317	disabled person refuses to be interviewed or cannot be interviewed
318	318	because of a physical or mental impairment, the department shall
319	319	continue the investigation by interviewing other persons thought to
320	320	have knowledge relevant to the investigation.
321	321	(b) The investigation may include an interview with an
322	322	alleged juvenile perpetrator of the alleged abuse, neglect, or
323	323	exploitation.
324	324	(c) The department or state agency may conduct an interview
325	325	under this section in private or may include any person the
326	326	department or agency determines is necessary.
327	327	SECTION 7. Subsection (b), Section 48.1521, Human Resources
328	328	Code, is amended to read as follows:
329	329	(b) Each county with a population of 250,000 or more shall
330	330	appoint persons to serve as standing members of a special task unit
331	331	to monitor cases that arise in the county and require monitoring as
332	332	provided by Subsection (a). The standing members of each special
333	333	task unit must include:
334	334	(1) a provider of mental health services or aging
335	335	services or a representative of a nonprofit entity serving persons
336	336	with disabilities;
337	337	(2) a representative of a law enforcement agency;
338	338	[and]
339	339	(3) a legal expert; and
340	340	(4) a physician, nurse, or other medical professional.
341	341	SECTION 8. Subsections (a), (b), (c), (d), and (e), Section
342	342	48.154, Human Resources Code, are amended to read as follows:
343	343	(a) The department or another state agency, as appropriate,
344	344	shall have access to any records or documents, including
345	345	client-identifying information, financial records, and medical and
346	346	psychological records, necessary to the performance of the
347	347	department's or state agency's duties under this chapter. The
348	348	duties include but are not limited to the investigation of abuse,
349	349	neglect, or exploitation or the provisions of services to an
350	350	elderly or disabled person. A person, [or] agency, or institution
351	351	that has a record or document that the department or state agency
352	352	needs to perform its duties under this chapter shall, without
353	353	unnecessary delay, make the record or document available to the
354	354	department or state agency that requested the record or document.
355	355	(b) The department is exempt from the payment of a fee
356	356	otherwise required or authorized by law to obtain a financial
357	357	record from a person, agency, or institution or a medical record,
358	358	including a mental health record, from a hospital or health care
359	359	provider if the request for a record is made in the course of an
360	360	investigation by the department.
361	361	(c) If the department or another state agency cannot obtain
362	362	access to a record or document that is necessary to properly conduct
363	363	an investigation or to perform another duty under this chapter, the
364	364	department or state agency may petition the probate court or the
365	365	statutory or constitutional county court having probate
366	366	jurisdiction for access to the record or document.
367	367	(d) On good cause shown, the court shall order the person,
368	368	agency, or institution who has [denied access to] a requested
369	369	record or document to allow the department or state agency to have
370	370	access to that record or document under the terms and conditions
371	371	prescribed by the court.
372	372	(e) A person, agency, or institution who has a requested
373	373	record or document is entitled to notice and a hearing on a [the]
374	374	petition filed under this section.
375	375	SECTION 9. Subsection (d), Section 48.203, Human Resources
376	376	Code, is amended to read as follows:
377	377	(d) Except as provided by Section 48.208, if [If] an elderly
378	378	or disabled person withdraws from or refuses consent to voluntary
379	379	protective services, the services may not be provided.
380	380	SECTION 10. Section 48.204, Human Resources Code, is
381	381	amended to read as follows:
382	382	Sec. 48.204. AGENCY POWERS. A protective services agency
383	383	may furnish protective services to an elderly or disabled person
384	384	with the person's consent or to a relative or caretaker of an
385	385	elderly or disabled person on behalf of the elderly or disabled
386	386	person with the relative's or caregiver's consent or, if the elderly
387	387	or disabled person lacks the capacity to consent, without that
388	388	person's consent as provided by this chapter.
389	389	SECTION 11. Subsections (c-3), (e), (e-2), (f), and (h),
390	390	Section 48.208, Human Resources Code, are amended to read as
391	391	follows:
392	392	(c-3) An assessment of the elderly or disabled person's
393	393	psychological status must be performed by a licensed psychologist,
394	394	licensed professional counselor, or master social worker who has
395	395	training and expertise in issues related to abuse, neglect, and
396	396	exploitation. The person performing the assessment shall sign a
397	397	report stating:
398	398	(1) that the elderly or disabled person is reported to
399	399	be suffering from abuse, neglect, or exploitation, which may
400	400	present a threat to the person's life or physical safety; and
401	401	(2) that in the professional opinion of the licensed
402	402	psychologist, licensed professional counselor, or master social
403	403	worker, as applicable, the issuance of an emergency order
404	404	authorizing protective services without the elderly or disabled
405	405	person's consent is necessary under the circumstances.
406	406	(e) The emergency order expires on the earlier of [at] the
407	407	end of the 10th day after [72 hours from] the date [time] the order
408	408	is rendered or the end of the 10th day after the date the person was
409	409	removed to safer surroundings if the emergency order was rendered
410	410	subsequent to the removal of the person to safer surroundings in
411	411	accordance with Subsection (h), unless:
412	412	(1) the emergency order terminates as provided by
413	413	Subsection (e-1);
414	414	(2) the 10-day [72-hour] period ends on a Saturday,
415	415	Sunday, or legal holiday in which event the order is automatically
416	416	extended to 4 p.m. on the first succeeding business day; or
417	417	(3) the court extends the order as provided by
418	418	Subsection (e-2).
419	419	(e-2) The court, after notice and a hearing, may extend an
420	420	emergency order issued under this section for a period of not more
421	421	than 30 days after the date the original emergency order for
422	422	protective services was rendered. The court, after notice and a
423	423	hearing and for good cause shown, may grant a second extension of an
424	424	emergency order of not more than an additional 30 days. The court
425	425	may not grant more than two extensions of the original emergency
426	426	order. An extension order that ends on a Saturday, Sunday, or legal
427	427	holiday is automatically extended to 4 p.m. on the first succeeding
428	428	business day. The court may modify or terminate the emergency order
429	429	on petition of the department, the incapacitated person, or any
430	430	person interested in the person's [his] welfare.
431	431	(f) Any medical facility, emergency medical services
432	432	provider, or physician who provides treatment to or who transports
433	433	[treating] an elderly or disabled person pursuant to an emergency
434	434	order under Subsection (d) or an emergency authorization under
435	435	Subsection (h) [this chapter] is not liable for any damages arising
436	436	from the treatment or transportation, except those damages
437	437	resulting from the negligence of the facility, provider, or
438	438	physician.
439	439	(h) If the department cannot obtain an emergency order under
440	440	this section because the court is closed on a Saturday, Sunday, or
441	441	legal holiday or after 5 p.m., the department may remove or
442	442	authorize an appropriate transportation service, including an
443	443	emergency medical services provider, to remove the elderly or
444	444	disabled person to safer surroundings, authorize medical
445	445	treatment, or authorize [order] or provide other available services
446	446	necessary to remove conditions creating the threat to life or
447	447	physical safety. The department must obtain an emergency order
448	448	under this section not later than 4 p.m. on the first succeeding
449	449	business day after the date on which protective services are
450	450	provided. If the department does not obtain an emergency order, the
451	451	department shall cease providing protective services and, if
452	452	necessary, make arrangements for the immediate return of the person
453	453	to the place from which the person was removed, to the person's
454	454	place of residence in the state, or to another suitable place.
455	455	SECTION 12. The change made by this Act to Section 48.053,
456	456	Human Resources Code, applies only to an offense committed on or
457	457	after the effective date of this Act. An offense committed before
458	458	the effective date of this Act is governed by the law in effect when
459	459	the offense was committed, and the former law is continued in effect
460	460	for that purpose. For the purposes of this section, an offense was
461	461	committed before the effective date of this Act if any element of
462	462	the offense occurred before that date.
463	463	SECTION 13. If before implementing any provision of this
464	464	Act a state agency determines that a waiver or authorization from a
465	465	federal agency is necessary for implementation of that provision,
466	466	the agency affected by the provision shall request the waiver or
467	467	authorization and may delay implementing that provision until the
468	468	waiver or authorization is granted.
469	469	SECTION 14. This Act takes effect September 1, 2009.