By: Nelson S.B. No. 221
(In the Senate - Filed November 18, 2010; January 31, 2011,
read first time and referred to Committee on Health and Human
Services; February 22, 2011, reported favorably by the following
vote: Yeas 8, Nays 0; February 22, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the Department of Family and Protective Services,
including protective services and investigations of alleged abuse,
neglect, or exploitation for certain adults who are elderly or
disabled; providing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 59.006, Finance Code, is
amended to read as follows:
(a) This section provides the exclusive method for
compelled discovery of a record of a financial institution relating
to one or more customers but does not create a right of privacy in a
record. This section does not apply to and does not require or
authorize a financial institution to give a customer notice of:
(1) a demand or inquiry from a state or federal
government agency authorized by law to conduct an examination of
the financial institution;
(2) a record request from a state or federal
government agency or instrumentality under statutory or
administrative authority that provides for, or is accompanied by, a
specific mechanism for discovery and protection of a customer
record of a financial institution, including a record request from
a federal agency subject to the Right to Financial Privacy Act of
1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
Internal Revenue Service under Section 1205, Internal Revenue Code
of 1986;
(3) a record request from or report to a government
agency arising out of the investigation or prosecution of a
criminal offense or the investigation of alleged abuse, neglect, or
exploitation of an elderly or disabled person in accordance with
Chapter 48, Human Resources Code;
(4) a record request in connection with a garnishment
proceeding in which the financial institution is garnishee and the
customer is debtor;
(5) a record request by a duly appointed receiver for
the customer;
(6) an investigative demand or inquiry from a state
legislative investigating committee;
(7) an investigative demand or inquiry from the
attorney general of this state as authorized by law other than the
procedural law governing discovery in civil cases; or
(8) the voluntary use or disclosure of a record by a
financial institution subject to other applicable state or federal
law.
SECTION 2. Section 411.114, Government Code, is amended to
read as follows:
Sec. 411.114. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY]
SERVICES. (a)(1) In this subsection:
(A) "Child," "child-care facility,"
"child-placing agency," and "family home" have the meanings
assigned by Section 42.002, Human Resources Code.
(B) "Elderly person" has the meaning assigned by
Section 48.002, Human Resources Code.
(C) "Maternity home" has the meaning assigned by
Section 249.001, Health and Safety Code.
(D) "Person with a disability" means a disabled
person as defined by Section 48.002, Human Resources Code.
(E) "Ward" has the meaning assigned by Section
601, Texas Probate Code.
(2) The Department of Family and Protective Services
shall obtain from the department criminal history record
information maintained by the department that relates to a person
who is:
(A) an applicant for a license, registration,
certification, or listing under Chapter 42, Human Resources Code,
or Chapter 249, Health and Safety Code;
(B) an owner, operator, or employee of or an
applicant for employment by a child-care facility, child-placing
agency, family home, or maternity home licensed, registered,
certified, or listed under Chapter 42, Human Resources Code, or
Chapter 249, Health and Safety Code;
(C) a person 14 years of age or older who will be
regularly or frequently working or staying in a child-care
facility, family home, or maternity home while children are being
provided care, other than a child in the care of the home or
facility;
(D) an applicant selected for a position with the
Department of Family and Protective Services, the duties of which
include direct delivery of protective services to children, elderly
persons, or persons with a disability;
(E) an employee of, an applicant for employment
with, or a volunteer or an applicant volunteer with a business
entity or person that contracts with the Department of Family and
Protective Services to provide direct delivery of protective
services to children, elderly persons, or persons with a
disability, if the person's duties or responsibilities include
direct contact with children, elderly persons, or persons with a
disability;
(F) a registered volunteer with the Department of
Family and Protective Services;
(G) a person providing or applying to provide
in-home, adoptive, or foster care for children in the care of the
Department of Family and Protective Services and other persons
living in the residence in which the child will reside;
(H) a Department of Family and Protective
Services employee who is engaged in the direct delivery of
protective services to children, elderly persons, or persons with a
disability;
(I) an alleged perpetrator in [a person who is
the subject of] a report the Department of Family and Protective
Services receives alleging that the person has abused, neglected,
or exploited a child, an elderly person, or a person with a
disability, provided that:
(i) the report alleges the person has
engaged in conduct that meets the statutory definition of abuse,
neglect, or exploitation under Chapter 261, Family Code, or Chapter
48, Human Resources Code; and
(ii) the person [who is the subject of the
report] is not also the victim of the alleged conduct;
(J) a person providing child care for a child who
is in the care of the Department of Family and Protective Services
and who is or will be receiving adoptive, foster, or in-home care;
(K) through a contract with a nonprofit
management center, an employee of, an applicant for employment
with, or a volunteer or an applicant volunteer with a nonprofit,
tax-exempt organization that provides any service that involves the
care of or access to a child [children], an elderly person
[persons], or a person [persons] with a disability; or
(L) an applicant for a child-care administrator
or child-placing agency administrator license under Chapter 43,
Human Resources Code.
(3) The Department of Family and Protective [and
Regulatory] Services is entitled to obtain from the department
criminal history record information maintained by the department
that relates to a person who is:
(A) a volunteer or applicant volunteer with a
local affiliate in this state of Big Brothers/Big Sisters of
America;
(B) a volunteer or applicant volunteer with the
"I Have a Dream/Houston" program;
(C) a volunteer or applicant volunteer with an
organization that provides court-appointed special advocates for
abused or neglected children;
(D) a person providing, at the request of the
child's parent, in-home care for a child who is the subject of a
report alleging the child has been abused or neglected;
(E) a volunteer or applicant volunteer with a
Texas chapter of the Make-a-Wish Foundation of America;
(F) a person providing, at the request of the
child's parent, in-home care for a child only if the person gives
written consent to the release and disclosure of the information;
(G) a child who is related to the caretaker, as
determined under Section 42.002, Human Resources Code, and who
resides in or is present in a child-care facility, family home, or
maternity home, other than a child described by Subdivision (2)(C),
or any other person who has unsupervised access to a child in the
care of a child-care facility, family home, or maternity home;
(H) an applicant for a position with the
Department of Family and Protective [and Regulatory] Services,
other than a position described by Subdivision (2)(D), regardless
of the duties of the position;
(I) a volunteer or applicant volunteer with the
Department of Family and Protective [and Regulatory] Services,
other than a registered volunteer, regardless of the duties to be
performed;
(J) a person providing or applying to provide
in-home, adoptive, or foster care for children to the extent
necessary to comply with Subchapter B, Chapter 162, Family Code;
(K) a Department of Family and Protective [and
Regulatory] Services employee, other than an employee described by
Subdivision (2)(H), regardless of the duties of the employee's
position;
(L) a relative of a child in the care of the
Department of Family and Protective [and Regulatory] Services, to
the extent necessary to comply with Section 162.007, Family Code;
(M) a person, other than an alleged perpetrator
in [the subject of] a report described in Subdivision (2)(I),
living in the residence in which the alleged victim of the report
resides;
(N) a contractor or an employee of a contractor
who delivers services to a ward of the Department of Protective and
Regulatory Services under a contract with the estate of the ward;
(O) a person who seeks unsupervised visits with a
ward of the Department of Protective and Regulatory Services,
including a relative of the ward; [or]
(P) an employee, volunteer, or applicant
volunteer of a children's advocacy center under Subchapter E,
Chapter 264, Family Code, including a member of the governing board
of a center; or
(Q) an employee of, an applicant for employment
with, or a volunteer or an applicant volunteer with an entity or
person that contracts with the Department of Family and Protective
Services and has access to confidential information in the
department's records, if the employee, applicant, volunteer, or
applicant volunteer has or will have access to that confidential
information.
(4) Subject to Section 411.087, the Department of
Family and Protective [and Regulatory] Services is entitled to:
(A) obtain through the Federal Bureau of
Investigation criminal history record information maintained or
indexed by that bureau that pertains to a person described by
Subdivision (2) or (3); and
(B) obtain from any other criminal justice agency
in this state criminal history record information maintained by
that criminal justice agency that relates to a person described by
Subdivision (2) or (3). Law enforcement entities shall expedite
the furnishing of such information to Department of Family and
Protective [and Regulatory] Services workers to ensure prompt
criminal background checks for the safety of alleged victims and
Department of Family and Protective [and Regulatory] Services
workers.
(5) The Department of Family and Protective [and
Regulatory] Services may not use the authority granted under this
section to harass an employee or volunteer. The executive
commissioner of the Health and Human Services Commission [Board of
Protective and Regulatory Services] shall adopt rules to prevent
the harassment of an employee or volunteer through the request and
use of criminal records.
(6) Criminal history record information obtained by
the Department of Family and Protective [and Regulatory] Services
under this subsection may not be released to any person except:
(A) on court order;
(B) with the consent of the person who is the
subject of the criminal history record information;
(C) for purposes of an administrative hearing
held by the Department of Family and Protective [and Regulatory]
Services concerning the person who is the subject of the criminal
history record information; or
(D) as provided by Subdivision (7).
(7) The Department of Family and Protective [and
Regulatory] Services is not prohibited from releasing criminal
history record information obtained under this subsection to:
(A) the person who is the subject of the criminal
history record information;
(B) a child-care facility, child-placing agency,
family home, or maternity home listed in Subdivision (2) that
employs or is considering employing the person who is the subject of
the criminal history record information;
(C) a person or business entity described by
Subdivision (2)(E) or (3) who uses or intends to use the services of
the volunteer or employs or is considering employing the person who
is the subject of the criminal history record information; [or]
(D) an adult who resides [residing] with an
alleged victim of abuse, neglect, or exploitation of a child,
elderly person, or person with a disability and who also resides
with the alleged perpetrator of that abuse, neglect, or
exploitation if:
(i) the alleged perpetrator [person who] is
the subject of the criminal history record information; and
(ii)[, if] the Department of Family and
Protective [and Regulatory] Services determines that the release of
information to the adult is necessary to ensure the safety or
welfare of the alleged victim [child, elderly person, or person
with a disability] or the adult; or
(E) an elderly or disabled person who is an
alleged victim of abuse, neglect, or exploitation and who resides
with the alleged perpetrator of that abuse, neglect, or
exploitation if:
(i) the alleged perpetrator is the subject
of the criminal history record information; and
(ii) the Department of Family and
Protective Services determines that the release of information to
the elderly or disabled person or adult is necessary to ensure the
safety or welfare of the elderly or disabled person.
(b) The failure or refusal to provide a complete set of
fingerprints or a complete name on request constitutes good cause
for dismissal or refusal to hire, as applicable, with regard to a
volunteer of or an employee or applicant for permanent or temporary
employment with the Department of Family and Protective [and
Regulatory] Services, or a facility, home, business, or other
entity, if the volunteer position, employment, or potential
employment involves direct interaction with or the opportunity to
interact and associate with children.
(c) The Department of Family and Protective [and
Regulatory] Services may charge an organization or person that
requests criminal history record information under Subsection
(a)(3) a fee in an amount necessary to cover the costs of obtaining
the information on the organization's or person's behalf.
SECTION 3. Subsection (a), Section 142.018, Health and
Safety Code, is amended to read as follows:
(a) In this section, "abuse," "exploitation," and "neglect"
have the meanings assigned as provided by Section 48.002(c)
[48.002], Human Resources Code.
SECTION 4. Subsection (b), Section 40.0315, Human Resources
Code, is amended to read as follows:
(b) An investigator in the unit shall determine whether an
elderly or disabled person who is the subject of a report made under
Section 48.051(a) may have suffered from abuse, neglect, or
exploitation as a result of the criminal conduct of another person.
If the investigator determines that criminal conduct may have
occurred, the investigator shall immediately notify:
(1) the commission's office of inspector general if
the disabled person who is the subject of the report resides in a
state supported living center or the ICF-MR component of the Rio
Grande State Center; and [or]
(2) the appropriate law enforcement agency, unless the
law enforcement agency reported the alleged abuse, neglect, or
exploitation to the department.
SECTION 5. Subdivisions (3) and (5), Subsection (a),
Section 48.002, Human Resources Code, are amended to read as
follows:
(3) "Exploitation" means the illegal or improper act
or process of a caretaker, family member, or other individual who
has an ongoing relationship with an [the] elderly or disabled
person that involves using, or attempting to use, the resources of
the [an] elderly or disabled person, including the person's social
security number or other identifying information, for monetary or
personal benefit, profit, or gain without the informed consent of
the elderly or disabled person.
(5) "Protective services" means the services
furnished by the department or by a protective services agency to an
elderly or disabled person who has been determined to be in a state
of abuse, neglect, or exploitation or to a relative or caretaker of
an elderly or disabled person if the department determines the
services are necessary to prevent the elderly or disabled person
from returning to a state of abuse, neglect, or exploitation. These
services may include social casework, case management, and
arranging for psychiatric and health evaluation, home care, day
care, social services, health care, respite services, and other
services consistent with this chapter. The term does not include
the services of the department or another protective services
agency in conducting an investigation regarding alleged abuse,
neglect, or exploitation of an elderly or disabled person.
SECTION 6. Section 48.002, Human Resources Code, is amended
by adding Subsection (c) to read as follows:
(c) Notwithstanding Subsection (a), the executive
commissioner may adopt rules defining "abuse," "neglect," and
"exploitation" for use in an investigation of a caretaker who is an
employee, contractor, agent, or volunteer of an entity licensed
under Chapter 142, Health and Safety Code.
SECTION 7. Subsection (a), Section 48.006, Human Resources
Code, is amended to read as follows:
(a) Subject to the availability of funds, the department
shall develop a community satisfaction survey that solicits
information regarding the department's performance with respect to
providing investigative and adult protective services. In each
region, the department shall send the survey at least biennially
[annually] to:
(1) stakeholders in the adult protective services
system, including local law enforcement agencies and prosecutors'
offices;
(2) protective services agencies, including nonprofit
agencies; and
(3) courts with jurisdiction over probate matters.
SECTION 8. Section 48.053, Human Resources Code, is amended
to read as follows:
Sec. 48.053. FALSE REPORT; PENALTY. (a) A person commits
an offense if the person knowingly or intentionally reports
information as provided in this chapter that the person knows is
false or lacks factual foundation.
(b) An offense under this section is a Class A [B]
misdemeanor.
SECTION 9. Section 48.152, Human Resources Code, is amended
to read as follows:
Sec. 48.152. INVESTIGATION. (a) An investigation by the
department or a state agency shall include an interview with the
elderly or disabled person, if appropriate, and with persons
thought to have knowledge of the circumstances. If the elderly or
disabled person refuses to be interviewed or cannot be interviewed
because of a physical or mental impairment, the department shall
continue the investigation by interviewing other persons thought to
have knowledge relevant to the investigation.
(b) The investigation may include an interview with an
alleged juvenile perpetrator of the alleged abuse, neglect, or
exploitation.
(c) The department or state agency may conduct an interview
under this section in private or may include any person the
department or agency determines is necessary.
SECTION 10. Section 48.1522, Human Resources Code, is
amended to read as follows:
Sec. 48.1522. REPORTS OF CRIMINAL CONDUCT TO LAW
ENFORCEMENT AGENCY. (a) Except as provided by Subsection (b), if
during the course of the department's or another state agency's
investigation of reported abuse, neglect, or exploitation a
caseworker of the department or other state agency, as applicable,
or the caseworker's supervisor has cause to believe that the
elderly or disabled person has been abused, neglected, or exploited
by another person in a manner that constitutes a criminal offense
under any law, including Section 22.04, Penal Code, the caseworker
or supervisor shall:
(1) immediately notify an appropriate law enforcement
agency, unless the law enforcement agency reported the alleged
abuse, neglect, or exploitation to the department; and
(2) provide the law enforcement agency with a copy of
the investigation report of the department or other state agency,
as applicable, in a timely manner.
(b) If during the course of the department's investigation
of reported abuse, neglect, or exploitation a caseworker of the
department or the caseworker's supervisor has cause to believe that
a disabled person who is a resident or client of a state supported
living center or the ICF-MR component of the Rio Grande State Center
has been abused, neglected, or exploited by another person in a
manner that constitutes a criminal offense under any law, including
Section 22.04, Penal Code, in addition to the report to the
appropriate law enforcement agency required by Subsection (a), the
caseworker shall immediately notify the commission's office of
inspector general and promptly provide the commission's office of
inspector general with a copy of the department's investigation
report.
SECTION 11. Subsections (a) through (e), Section 48.154,
Human Resources Code, are amended to read as follows:
(a) The department or another state agency, as appropriate,
shall have access to any records or documents, including
client-identifying information, financial records, and medical and
psychological records, necessary to the performance of the
department's or state agency's duties under this chapter. The
duties include but are not limited to the investigation of abuse,
neglect, or exploitation or the provisions of services to an
elderly or disabled person. A person, [or] agency, or institution
that has a record or document that the department or state agency
needs to perform its duties under this chapter shall, without
unnecessary delay, make the record or document available to the
department or state agency that requested the record or document.
(b) The department is exempt from the payment of a fee
otherwise required or authorized by law to obtain a financial
record from a person, agency, or institution or a medical record,
including a mental health record, from a hospital or health care
provider if the request for a record is made in the course of an
investigation by the department.
(c) If the department or another state agency cannot obtain
access to a record or document that is necessary to properly conduct
an investigation or to perform another duty under this chapter, the
department or state agency may petition the probate court or the
statutory or constitutional county court having probate
jurisdiction for access to the record or document.
(d) On good cause shown, the court shall order the person,
agency, or institution who has [denied access to] a requested
record or document to allow the department or state agency to have
access to that record or document under the terms and conditions
prescribed by the court.
(e) A person, agency, or institution who has a requested
record or document is entitled to notice and a hearing on a [the]
petition filed under this section.
SECTION 12. Subsection (d), Section 48.203, Human Resources
Code, is amended to read as follows:
(d) Except as provided by Section 48.208, if [If] an elderly
or disabled person withdraws from or refuses consent to voluntary
protective services, the services may not be provided.
SECTION 13. Section 48.204, Human Resources Code, is
amended to read as follows:
Sec. 48.204. AGENCY POWERS. A protective services agency
may furnish protective services to an elderly or disabled person
with the person's consent or to a relative or caretaker of an
elderly or disabled person on behalf of the elderly or disabled
person with the relative's or caregiver's consent or, if the elderly
or disabled person lacks the capacity to consent, without that
person's consent as provided by this chapter.
SECTION 14. Section 48.208, Human Resources Code, is
amended by amending Subsections (e), (e-2), (f), and (h) and adding
Subsection (i) to read as follows:
(e) The emergency order expires on the earlier of [at] the
end of the 10th day after [72 hours from] the date [time] the order
is rendered or the end of the 10th day after the date the person was
removed to safer surroundings if the emergency order was rendered
subsequent to the removal of the person to safer surroundings in
accordance with Subsection (h), unless:
(1) the emergency order terminates as provided by
Subsection (e-1);
(2) the 10-day [72-hour] period ends on a Saturday,
Sunday, or legal holiday in which event the order is automatically
extended to 4 p.m. on the first succeeding business day; or
(3) the court extends the order as provided by
Subsection (e-2).
(e-2) The court, after notice and a hearing, may extend an
emergency order issued under this section for a period of not more
than 30 days after the date the original emergency order for
protective services was rendered. The court, after notice and a
hearing and for good cause shown, may grant a second extension of an
emergency order of not more than an additional 30 days. The court
may not grant more than two extensions of the original emergency
order. An extension order that ends on a Saturday, Sunday, or legal
holiday is automatically extended to 4 p.m. on the first succeeding
business day. The court may modify or terminate the emergency order
on petition of the department, the incapacitated person, or any
person interested in the person's [his] welfare.
(f) Any medical facility, emergency medical services
provider, or physician who provides treatment to or who transports
[treating] an elderly or disabled person pursuant to an emergency
order under Subsection (d) or an emergency authorization under
Subsection (h) [this chapter] is not liable for any damages arising
from the treatment or transportation, except those damages
resulting from the negligence of the facility, provider, or
physician.
(h) If the department cannot obtain an emergency order under
this section because the court is closed on a Saturday, Sunday, or
legal holiday or after 5 p.m., the department may remove or
authorize an appropriate transportation service, including an
emergency medical services provider, to remove the elderly or
disabled person to safer surroundings, authorize medical
treatment, or authorize [order] or provide other available services
necessary to remove conditions creating the threat to life or
physical safety. The department must obtain an emergency order
under this section not later than 4 p.m. on the first succeeding
business day after the date on which protective services are
provided. If the department does not obtain an emergency order, the
department shall cease providing protective services and, if
necessary, make arrangements for the immediate return of the person
to the place from which the person was removed, to the person's
place of residence in the state, or to another suitable place.
(i) If the department's removal of a person from the
person's place of residence under this section results in that
residence being vacant, the department shall notify the appropriate
law enforcement agency of the vacancy to facilitate the law
enforcement agency's monitoring of the residence.
SECTION 15. The change made by this Act to Section 48.053,
Human Resources Code, applies only to an offense committed on or
after the effective date of this Act. An offense committed before
the effective date of this Act is governed by the law in effect when
the offense was committed, and the former law is continued in effect
for that purpose. For the purposes of this section, an offense was
committed before the effective date of this Act if any element of
the offense occurred before that date.
SECTION 16. This Act takes effect September 1, 2011.
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