By: Zaffirini S.B. No. 1880
(Raymond)
A BILL TO BE ENTITLED
AN ACT
relating to the authority of the Department of Family and
Protective Services to investigate abuse, neglect, or exploitation
of individuals receiving services from certain providers.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 48.002(a), Human Resources Code, is
amended by adding Subdivision (11) to read as follows:
(11) "Home and community-based services" has the
meaning assigned by Section 48.251.
SECTION 2. Section 48.002(b), Human Resources Code, as
amended by S.B. No. 219, Acts of the 84th Legislature, Regular
Session, 2015, is amended to read as follows:
(b) The definitions of "abuse," "neglect," [and]
"exploitation," and "an individual receiving services" adopted by
the executive commissioner as prescribed by Section 48.251(b)
[48.251] apply to an investigation of abuse, neglect, or
exploitation conducted under Subchapter F [or H].
SECTION 3. Section 48.003, Human Resources Code, is amended
to read as follows:
Sec. 48.003. INVESTIGATIONS IN NURSING FACILITIES [HOMES],
ASSISTED LIVING FACILITIES, AND SIMILAR FACILITIES. (a) Except as
provided by Subsection (c), this [This] chapter does not apply if
the alleged or suspected abuse, neglect, or exploitation occurs in
a facility licensed under Chapter 242 or 247, Health and Safety
Code.
(b) Alleged or suspected abuse, neglect, or exploitation
that occurs in a facility licensed under Chapter 242 or 247, Health
and Safety Code, is governed by Chapter 260A, Health and Safety
Code, except as otherwise provided by Subsection (c).
(c) Subchapter F applies to an investigation of alleged or
suspected abuse, neglect, or exploitation in which a provider of
home and community-based services is or may be alleged to have
committed the abuse, neglect, or exploitation, regardless of
whether the facility in which those services were provided is
licensed under Chapter 242 or 247, Health and Safety Code.
SECTION 4. Sections 48.051(a) and (b), Human Resources
Code, as amended by S.B. No. 219, Acts of the 84th Legislature,
Regular Session, 2015, are amended to read as follows:
(a) Except as prescribed by Subsection (b), a person having
cause to believe that an elderly person, a [or] person with a
disability, or an individual receiving services from a provider as
described by Subchapter F is in the state of abuse, neglect, or
exploitation[, including a person with a disability who is
receiving services as described by Section 48.252,] shall report
the information required by Subsection (d) immediately to the
department.
(b) If a person has cause to believe that an elderly person
or a person with a disability, other than an individual [a person
with a disability] receiving services from a provider as described
by Subchapter F [Section 48.252], has been abused, neglected, or
exploited in a facility operated, licensed, certified, or
registered by a state agency, the person shall report the
information to the state agency that operates, licenses, certifies,
or registers the facility for investigation by that agency.
SECTION 5. Section 48.103, Human Resources Code, is amended
by amending Subsection (a), as amended by S.B. No. 219, Acts of the
84th Legislature, Regular Session, 2015, and adding Subsection (c)
to read as follows:
(a) Except as otherwise provided by Subsection (c), on [On]
determining after an investigation that an elderly person or a
person with a disability has been abused, exploited, or neglected
by an employee of a home and community support services agency
licensed under Chapter 142, Health and Safety Code, the department
shall:
(1) notify the state agency responsible for licensing
the home and community support services agency of the department's
determination;
(2) notify any health and human services agency, as
defined by Section 531.001, Government Code, that contracts with
the home and community support services agency for the delivery of
health care services of the department's determination; and
(3) provide to the licensing state agency and any
contracting health and human services agency access to the
department's records or documents relating to the department's
investigation.
(c) This section does not apply to an investigation of
alleged or suspected abuse, neglect, or exploitation in which a
provider, as defined by Section 48.251, is or may be alleged to have
committed the abuse, neglect, or exploitation. An investigation
described by this subsection is governed by Subchapter F.
SECTION 6. Section 48.151(e), Human Resources Code, is
amended to read as follows:
(e) This section does not apply to investigations conducted
under Subchapter F [or H].
SECTION 7. Section 48.201, Human Resources Code, as amended
by S.B. No. 219, Acts of the 84th Legislature, Regular Session,
2015, is amended to read as follows:
Sec. 48.201. APPLICATION OF SUBCHAPTER. Except as
otherwise provided, this subchapter does not apply to an
investigation conducted under Subchapter F [or H].
SECTION 8. Subchapter F, Chapter 48, Human Resources Code,
as amended by S.B. No. 219, Acts of the 84th Legislature, Regular
Session, 2015, is amended to read as follows:
SUBCHAPTER F. INVESTIGATIONS OF ABUSE, NEGLECT, OR EXPLOITATION
OF INDIVIDUALS RECEIVING SERVICES FROM CERTAIN PROVIDERS [IN
CERTAIN FACILITIES, COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND
INTELLECTUAL AND DEVELOPMENTAL DISABILITY AUTHORITIES]
Sec. 48.251. DEFINITIONS. (a) In this subchapter:
(1) "Behavioral health services" means:
(A) mental health services, as defined by Section
531.002, Health and Safety Code; and
(B) interventions provided to treat chemical
dependency, as defined by Section 461A.002, Health and Safety Code.
(2) "Community center" has the meaning assigned by
Section 531.002, Health and Safety Code.
(3) "Facility" means:
(A) a facility listed in Section 532.001(b) or
532A.001(b), Health and Safety Code, including community services
operated by the Department of State Health Services or Department
of Aging and Disability Services, as described by those sections,
or a person contracting with a health and human services agency to
provide inpatient mental health services; and
(B) a facility licensed under Chapter 252, Health
and Safety Code.
(4) "Health and human services agency" has the meaning
assigned by Section 531.001, Government Code.
(5) "Home and community-based services" means
services provided in the home or community in accordance with 42
U.S.C. Section 1315, 42 U.S.C. Section 1315a, 42 U.S.C. Section
1396a, or 42 U.S.C. Section 1396n, and as otherwise provided by
department rule.
(6) "Local intellectual and developmental disability
authority" has the meaning assigned by Section 531.002, Health and
Safety Code.
(7) "Local mental health authority" has the meaning
assigned by Section 531.002, Health and Safety Code.
(8) "Managed care organization" has the meaning
assigned by Section 533.001, Government Code.
(9) "Provider" means:
(A) a facility;
(B) a community center, local mental health
authority, and local intellectual and developmental disability
authority;
(C) a person who contracts with a health and
human services agency or managed care organization to provide home
and community-based services;
(D) a person who contracts with a Medicaid
managed care organization to provide behavioral health services;
(E) a managed care organization;
(F) an officer, employee, agent, contractor, or
subcontractor of a person or entity listed in Paragraphs (A)-(E);
and
(G) an employee, fiscal agent, case manager, or
service coordinator of an individual employer participating in the
consumer-directed service option, as defined by Section 531.051,
Government Code.
(b) The executive commissioner by rule shall adopt
definitions of "abuse," "neglect," "exploitation," and "an
individual receiving services" for purposes of this subchapter and
["exploitation" to govern] investigations conducted under this
subchapter [and Subchapter H].
Sec. 48.252. INVESTIGATION OF REPORTS OF ABUSE, NEGLECT, OR
EXPLOITATION BY PROVIDER [IN CERTAIN FACILITIES AND IN COMMUNITY
CENTERS]. (a) The department shall receive and, except as
provided by Subsection (b), shall investigate under this subchapter
reports of the abuse, neglect, or exploitation of an individual
[with a disability] receiving services if the person alleged or
suspected to have committed the abuse, neglect, or exploitation is
a provider[:
[(1) in:
[(A) a mental health facility operated by the
Department of State Health Services; or
[(B) a facility licensed under Chapter 252,
Health and Safety Code;
[(2) in or from a community center, a local mental
health authority, or a local intellectual and developmental
disability authority; or
[(3) through a program providing services to that
person by contract with a mental health facility operated by the
Department of State Health Services, a community center, a local
mental health authority, or a local intellectual and developmental
disability authority].
(b) The department may not [shall receive and shall]
investigate under this subchapter reports of [the] abuse, neglect,
or exploitation alleged or suspected to have been committed by a
provider that is operated, licensed, certified, or registered by a
state agency that has authority under this chapter or other law to
investigate reports of abuse, neglect, or exploitation of an
individual by the provider. The department shall forward any
report of abuse, neglect, or exploitation alleged or suspected to
have been committed by a provider described by this subsection to
the appropriate state agency for investigation [of an individual
with a disability receiving services:
[(1) in a state supported living center or the ICF-IID
component of the Rio Grande State Center; or
[(2) through a program providing services to that
person by contract with a state supported living center or the
ICF-IID component of the Rio Grande State Center].
(c) The department shall receive and investigate under this
subchapter reports of abuse, neglect, or exploitation of an
individual who lives in a residence that is owned, operated, or
controlled by a provider who provides home and community-based
services under the home and community-based services waiver program
described by Section 534.001(11)(B), Government Code, regardless
of whether the individual is receiving services under that waiver
program from the provider. [The executive commissioner by rule
shall define who is "an individual with a disability receiving
services."
[(d) In this section, "community center," "local mental
health authority," and "local intellectual and developmental
disability authority" have the meanings assigned by Section
531.002, Health and Safety Code.]
Sec. 48.253. ACTION ON REPORT. (a) On receipt by the
department of a report of alleged abuse, neglect, or exploitation
under this subchapter, the department shall initiate a prompt and
thorough investigation as needed to evaluate the accuracy of the
report and to assess the need for emergency protective services,
unless the department, in accordance with rules adopted under this
subchapter, determines that the report:
(1) is frivolous or patently without a factual basis;
or
(2) does not concern abuse, neglect, or exploitation.
(b) After receiving a report that alleges that a provider is
or may be the person who committed the alleged abuse, neglect, or
exploitation, the department shall notify the provider and the
appropriate health and human services agency in accordance with
rules adopted by the executive commissioner.
(c) The provider identified under Subsection (b) shall:
(1) cooperate completely with an investigation
conducted under this subchapter; and
(2) provide the department complete access during an
investigation to:
(A) all sites owned, operated, or controlled by
the provider; and
(B) clients and client records.
(d) The executive commissioner shall adopt rules governing
investigations conducted under this subchapter.
Sec. 48.254. FORWARDING OF CERTAIN REPORTS. (a) The
executive commissioner by rule shall establish procedures for the
department to use to [In accordance with department rules, the
department shall] forward a copy of the initial intake report and a
copy of the completed provider investigation report relating to
alleged or suspected abuse, neglect, or exploitation to the
appropriate provider and health and human services agency
[facility, community center, local mental health authority, local
intellectual and developmental disability authority, or program
providing mental health or intellectual disability services under
contract with the facility, community center, or authority].
(b) The department shall redact from an initial intake
report and from the copy of the completed provider investigation
report any identifying information contained in the report relating
to the person who reported the alleged or suspected abuse, neglect,
or exploitation under Section 48.051.
(c) A provider that receives a completed investigation
report under Subsection (a) shall forward the report to the managed
care organization with which the provider contracts for services
for the alleged victim.
Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS
SUBCHAPTER. (a) The executive commissioner [department, the
Department of Aging and Disability Services, and the Department of
State Health Services] shall adopt [develop] rules to:
(1) prioritize investigations conducted under this
subchapter with the primary criterion being whether there is a risk
that a delay in the investigation will impede the collection of
evidence in that investigation;
(2) [facilitate investigations in state mental health
facilities and state supported living centers.
[(b) The executive commissioner by rule shall] establish
procedures for resolving disagreements between the department and
health and human services agencies [the Department of Aging and
Disability Services or the Department of State Health Services]
concerning the department's investigation findings; and
(3) provide for an appeals process by the department
for the alleged victim of abuse, neglect, or exploitation.
(b) [(c) The department, the Department of Aging and
Disability Services, and the Department of State Health Services
shall develop and propose to the executive commissioner rules to
facilitate investigations in community centers, local mental
health authorities, and local intellectual and developmental
disability authorities.
[(c-1) The executive commissioner shall adopt rules
regarding investigations in a facility licensed under Chapter 252,
Health and Safety Code, to ensure that those investigations are as
consistent as practicable with other investigations conducted
under this subchapter.
[(d)] A confirmed investigation finding by the department
may not be changed by the administrator [a superintendent] of a
[state mental health] facility, [by a director of a state supported
living center, by a director of] a community center, [or by] a local
mental health authority, or a local intellectual and developmental
disability authority.
[(e) The executive commissioner shall provide by rule for an
appeals process by the alleged victim of abuse, neglect, or
exploitation under this section.
[(f) The executive commissioner by rule may assign
priorities to an investigation conducted by the department under
this section. The primary criterion used by the executive
commissioner in assigning a priority must be the risk that a delay
in the investigation will impede the collection of evidence.]
Sec. 48.256. SHARING PROVIDER INFORMATION. (a) The
executive commissioner shall adopt rules that prescribe the
appropriate manner in which health and human services agencies and
managed care organizations provide the department with information
necessary to facilitate identification of individuals receiving
services from providers and to facilitate notification of providers
by the department.
(b) The executive commissioner shall adopt rules requiring
a provider to provide information to the administering health and
human services agency necessary to facilitate identification by the
department of individuals receiving services from providers and to
facilitate notification of providers by the department.
(c) A provider of home and community-based services under
the home and community-based services waiver program described by
Section 534.001(11)(B), Government Code, shall post in a
conspicuous location inside any residence owned, operated, or
controlled by the provider in which home and community-based waiver
services are provided, a sign that states:
(1) the name, address, and telephone number of the
provider;
(2) the effective date of the provider's contract with
the applicable health and human services agency to provide home and
community-based services; and
(3) the name of the legal entity that contracted with
the applicable health and human services agency to provide those
services.
Sec. 48.257. RETALIATION PROHIBITED. (a) A provider of
home and community-based services may not retaliate against a
person for filing a report or providing information in good faith
relating to the possible abuse, neglect, or exploitation of an
individual receiving services.
(b) This section does not prohibit a provider of home and
community-based services from terminating an employee for a reason
other than retaliation.
Sec. 48.258. [SINGLE] TRACKING SYSTEM FOR REPORTS AND
INVESTIGATIONS. (a) The health and human services agencies
[department, the Department of Aging and Disability Services, and
the Department of State Health Services] shall, at the direction of
the executive commissioner, jointly develop and implement a
[single] system to track reports and investigations under this
subchapter.
(b) To facilitate implementation of the system, the health
and human services agencies [department, the Department of Aging
and Disability Services, and the Department of State Health
Services] shall use appropriate methods of measuring the number and
outcome of reports and investigations under this subchapter.
SECTION 9. Section 48.301, Human Resources Code, is amended
by amending Subsection (a), as amended by S.B. No. 219, Acts of the
84th Legislature, Regular Session, 2015, and adding Subsection
(a-1) to read as follows:
(a) If the department receives a report of suspected abuse,
neglect, or exploitation of an elderly person or a person with a
disability[, other than a person with a disability who is]
receiving services [as described by Section 48.252,] in a facility
operated, licensed, certified, or registered by a state agency, the
department shall refer the report to that agency.
(a-1) This subchapter does not apply to a report of
suspected abuse, neglect, or exploitation of an individual
receiving services from a provider as described by Subchapter F.
SECTION 10. Sections 48.401(1) and (3), Human Resources
Code, are amended to read as follows:
(1) "Agency" means:
(A) an entity licensed under Chapter 142, Health
and Safety Code;
(B) a person exempt from licensing under Section
142.003(a)(19), Health and Safety Code;
(C) a facility licensed under Chapter 252, Health
and Safety Code; or
(D) a provider [an entity] investigated by the
department under Subchapter F or under Section 261.404, Family
Code.
(3) "Employee" means a person who:
(A) works for:
(i) an agency; or
(ii) an individual employer participating
in the consumer-directed service option, as defined by Section
531.051, Government Code;
(B) provides personal care services, active
treatment, or any other [personal] services to an individual
receiving agency services, an individual who is a child for whom an
investigation is authorized under Section 261.404, Family Code, or
an individual receiving services through the consumer-directed
service option, as defined by Section 531.051, Government Code; and
(C) is not licensed by the state to perform the
services the person performs for the agency or the individual
employer participating in the consumer-directed service option, as
defined by Section 531.051, Government Code.
SECTION 11. The heading to Section 261.404, Family Code, as
amended by S.B. No. 219, Acts of the 84th Legislature, Regular
Session, 2015, is amended to read as follows:
Sec. 261.404. INVESTIGATIONS REGARDING CERTAIN CHILDREN
RECEIVING SERVICES FROM CERTAIN PROVIDERS [WITH MENTAL ILLNESS OR
AN INTELLECTUAL DISABILITY].
SECTION 12. Section 261.404, Family Code, as amended by
S.B. No. 219, Acts of the 84th Legislature, Regular Session, 2015,
is amended by amending Subsections (a) and (b) and adding
Subsections (a-1), (a-2), and (a-3) to read as follows:
(a) The department shall investigate a report of abuse,
neglect, or exploitation of a child receiving services from a
provider, as those terms are defined by Section 48.251, Human
Resources Code, or as otherwise defined by rule. The department
shall also investigate, under Subchapter F, Chapter 48, Human
Resources Code, a report of abuse, neglect, or exploitation of a
child receiving services from an officer, employee, agent,
contractor, or subcontractor of a home and community support
services agency licensed under Chapter 142, Health and Safety Code,
if the officer, employee, agent, contractor, or subcontractor is or
may be the person alleged to have committed the abuse, neglect, or
exploitation[:
[(1) in a facility operated by the Department of Aging
and Disability Services or a mental health facility operated by the
Department of State Health Services;
[(2) in or from a community center, a local mental
health authority, or a local intellectual and developmental
disability authority;
[(3) through a program providing services to that
child by contract with a facility operated by the Department of
Aging and Disability Services, a mental health facility operated by
the Department of State Health Services, a community center, a
local mental health authority, or a local intellectual and
developmental disability authority;
[(4) from a provider of home and community-based
services who contracts with the Department of Aging and Disability
Services; or
[(5) in a facility licensed under Chapter 252, Health
and Safety Code].
(a-1) For an investigation of a child living in a residence
owned, operated, or controlled by a provider of services under the
home and community-based services waiver program described by
Section 534.001(11)(B), Government Code, the department, in
accordance with Subchapter E, Chapter 48, Human Resources Code, may
provide emergency protective services necessary to immediately
protect the child from serious physical harm or death and, if
necessary, obtain an emergency order for protective services under
Section 48.208, Human Resources Code.
(a-2) For an investigation of a child living in a residence
owned, operated, or controlled by a provider of services under the
home and community-based services waiver program described by
Section 534.001(11)(B), Government Code, regardless of whether the
child is receiving services under that waiver program from the
provider, the department shall provide protective services to the
child in accordance with Subchapter E, Chapter 48, Human Resources
Code.
(a-3) For purposes of this section, Subchapters E and F,
Chapter 48, Human Resources Code, apply to an investigation of a
child and to the provision of protective services to that child in
the same manner those subchapters apply to an investigation of an
elderly person or person with a disability and the provision of
protective services to that person.
(b) The department shall investigate the report under rules
developed by the executive commissioner [with the advice and
assistance of the department, the Department of Aging and
Disability Services, and the Department of State Health Services].
SECTION 13. Section 142.009(c), Health and Safety Code, is
amended to read as follows:
(c) The department or its authorized representative shall
investigate each complaint received regarding the provision of home
health, hospice, or personal assistance services[, including any
allegation of abuse, neglect, or exploitation of a child under the
age of 18,] and may, as a part of the investigation:
(1) conduct an unannounced survey of a place of
business, including an inspection of medical and personnel records,
if the department has reasonable cause to believe that the place of
business is in violation of this chapter or a rule adopted under
this chapter;
(2) conduct an interview with a recipient of home
health, hospice, or personal assistance services, which may be
conducted in the recipient's home if the recipient consents;
(3) conduct an interview with a family member of a
recipient of home health, hospice, or personal assistance services
who is deceased or other person who may have knowledge of the care
received by the deceased recipient of the home health, hospice, or
personal assistance services; or
(4) interview a physician or other health care
practitioner, including a member of the personnel of a home and
community support services agency, who cares for a recipient of
home health, hospice, or personal assistance services.
SECTION 14. Section 260A.002, Health and Safety Code, is
amended by adding Subsection (a-1) to read as follows:
(a-1) Notwithstanding any other provision of this chapter,
a report made under this section that a provider is or may be
alleged to have committed abuse, neglect, or exploitation of a
resident of a facility other than a prescribed pediatric extended
care center shall be investigated by the Department of Family and
Protective Services in accordance with Subchapter F, Chapter 48,
Human Resources Code, and this chapter does not apply to that
investigation. In this subsection, "facility" and "provider" have
the meanings assigned by Section 48.251, Human Resources Code.
SECTION 15. The following are repealed:
(1) Section 261.404(f), Family Code, as amended by
S.B. No. 219, Acts of the 84th Legislature, Regular Session, 2015;
and
(2) Subchapter H, Chapter 48, Human Resources Code.
SECTION 16. This Act takes effect September 1, 2015.