81R1914 UM-D
By: Nelson S.B. No. 70
A BILL TO BE ENTITLED
AN ACT
relating to the investigation of abuse, neglect, or exploitation in
an intermediate care facility for the mentally retarded.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 252.122(a), Health and Safety Code, is
amended to read as follows:
(a) A person, including an owner or employee of a facility,
who has cause to believe that the physical or mental health or
welfare of a resident has been or may be adversely affected by abuse
or neglect caused by another person shall report the abuse or
neglect to the Department of Family and Protective Services
[department], to a designated agency, or to both the Department of
Family and Protective Services [department] and the designated
agency, as specified in [department] rules adopted by the
Department of Family and Protective Services.
SECTION 2. Section 252.124(b), Health and Safety Code, is
amended to read as follows:
(b) A local or state law enforcement agency that receives a
report of abuse or neglect shall refer the report to the Department
of Family and Protective Services [department] or the designated
agency.
SECTION 3. Sections 252.125(a), (c), (d), (e), (f), and
(g), Health and Safety Code, are amended to read as follows:
(a) The Department of Family and Protective Services
[department] or the designated agency shall make a thorough
investigation promptly after receiving either the oral or written
report.
(c) In the investigation, the Department of Family and
Protective Services [department] or the designated agency shall
determine:
(1) the nature, extent, and cause of the abuse or
neglect;
(2) the identity of the person responsible for the
abuse or neglect;
(3) the names and conditions of the other residents;
(4) an evaluation of the persons responsible for the
care of the residents;
(5) the adequacy of the facility environment; and
(6) any other information required by the Department
of Family and Protective Services [department].
(d) The investigation may include a visit to the resident's
facility and an interview with the resident, if considered
appropriate by the Department of Family and Protective Services
[department].
(e) If the Department of Family and Protective Services
[department] attempts to carry out an on-site investigation and it
is shown that admission to the facility or any place where a
resident is located cannot be obtained, a probate or county court
shall order the person responsible for the care of the resident or
the person in charge of a place where the resident is located to
allow admission for the investigation and any interview with the
resident.
(f) Before the completion of the investigation, the
Department of Family and Protective Services [department] shall
file a petition for temporary care and protection of the resident if
the Department of Family and Protective Services [department]
determines that immediate removal is necessary to protect the
resident from further abuse or neglect.
(g) The Department of Family and Protective Services
[department] or the designated agency shall make a complete written
report of the investigation and submit the report and its
recommendations to the district attorney and the appropriate law
enforcement agency and, if necessary, to the Department of Family
and Protective Services [department] on the Department of Family
and Protective Services' [department's] request.
SECTION 4. Section 252.126, Health and Safety Code, is
amended to read as follows:
Sec. 252.126. CONFIDENTIALITY. A report, record, or
working paper used or developed in an investigation made under this
subchapter is confidential and may be disclosed only for purposes
consistent with the rules adopted by the executive commissioner of
the Health and Human Services Commission [board] or the designated
agency.
SECTION 5. Section 252.129, Health and Safety Code, is
amended by adding Subsection (d) to read as follows:
(d) The department and the Department of Family and
Protective Services shall cooperate to ensure that the central
registry required by this section accurately includes reported
cases of resident abuse and neglect.
SECTION 6. Sections 252.134(a) through (e), Health and
Safety Code, are amended to read as follows:
(a) A facility licensed under this chapter shall submit a
report to the Department of Family and Protective Services
[department] concerning the death of:
(1) a resident of the facility; and
(2) a former resident that occurs 24 hours or less
after the former resident is transferred from the facility to a
hospital.
(b) The report must be submitted not later than the 10th
working day after the last day of each month in which a resident of
the facility dies. The facility must make the report on a form
prescribed by the Department of Family and Protective Services
[department]. The report must contain the name and social security
number of the deceased.
(c) The Department of Family and Protective Services
[department] shall correlate reports under this section with death
certificate information to develop data relating to the:
(1) name and age of the deceased;
(2) official cause of death listed on the death
certificate;
(3) date, time, and place of death; and
(4) name and address of the facility in which the
deceased resided.
(d) Unless specified by rules adopted by the executive
commissioner of the Health and Human Services Commission [board
rule], a record under this section is confidential and not subject
to the provisions of Chapter 552, Government Code.
(e) The Department of Family and Protective Services
[department] shall develop statistical information on official
causes of death to determine patterns and trends of incidents of
death among persons with mental retardation and related conditions
and in specific facilities. Information developed under this
subsection is not confidential.
SECTION 7. Subchapter G, Chapter 48, Human Resources Code,
is amended by adding Section 48.3015 to read as follows:
Sec. 48.3015. INVESTIGATION OF REPORTS IN ICF-MR. (a)
Notwithstanding Section 48.301, the department shall receive and
investigate reports of abuse, neglect, or exploitation of an
individual with a disability receiving services in an intermediate
care facility for the mentally retarded.
(b) The executive commissioner shall adopt rules governing
investigations conducted under this section and the provision of
services as necessary to alleviate abuse, neglect, or exploitation.
SECTION 8. Section 161.071, Human Resources Code, is
amended to read as follows:
Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
department is responsible for administering human services
programs for the aging and disabled, including:
(1) administering and coordinating programs to
provide community-based care and support services to promote
independent living for populations that would otherwise be
institutionalized;
(2) providing institutional care services, including
services through convalescent and nursing homes and related
institutions under Chapter 242, Health and Safety Code;
(3) providing and coordinating programs and services
for persons with disabilities, including programs for the
treatment, rehabilitation, or benefit of persons with
developmental disabilities or mental retardation;
(4) operating state facilities for the housing,
treatment, rehabilitation, or benefit of persons with
disabilities, including state schools for persons with mental
retardation;
(5) serving as the state unit on aging required by the
federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
and its subsequent amendments, including performing the general
functions under Section 101.022 to ensure:
(A) implementation of the federal Older
Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
subsequent amendments, including implementation of services and
volunteer opportunities under that Act for older residents of this
state through area agencies on aging;
(B) advocacy for residents of nursing facilities
through the office of the state long-term care ombudsman;
(C) fostering of the state and community
infrastructure and capacity to serve older residents of this state;
and
(D) availability of a comprehensive resource for
state government and the public on trends related to and services
and programs for an aging population;
(6) performing all licensing and enforcement
activities and functions related to long-term care facilities,
including licensing and enforcement activities related to
convalescent and nursing homes and related institutions under
Chapter 242, Health and Safety Code;
(7) performing all licensing and enforcement
activities related to assisted living facilities under Chapter 247,
Health and Safety Code;
(8) performing all licensing and enforcement
activities related to intermediate care facilities for persons with
mental retardation under Chapter 252, Health and Safety Code, other
than investigations of reported abuse, neglect, or exploitation;
(9) performing all licensing and enforcement
activities and functions related to home and community support
services agencies under Chapter 142, Health and Safety Code; and
(10) serving as guardian of the person or estate, or
both, for an incapacitated individual as provided by Subchapter E
of this chapter and Chapter XIII, Texas Probate Code.
SECTION 9. This Act applies only to a report of suspected
abuse, neglect, or exploitation that is made on or after the
effective date of this Act. A report of suspected abuse, neglect,
or exploitation that is made before the effective date of this Act
is governed by the law in effect on the date the report was made, and
that law is continued in effect for that purpose.
SECTION 10. This Act takes effect September 1, 2009.