Texas 2017 - 85th Regular

Texas House Bill HB1726 Compare Versions

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

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1	1	85R8021 KKR-F
2	2	By: Cortez H.B. No. 1726
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the abuse, neglect, and exploitation of recipients of
8	8	home health services; providing penalties; creating an offense.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle G, Title 2, Health and Safety Code, is
11	11	amended by adding Chapter 142A to read as follows:
12	12	CHAPTER 142A. REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF
13	13	RECIPIENTS OF CERTAIN SERVICES
14	14	Sec. 142A.001. DEFINITIONS. In this chapter:
15	15	(1) "Abuse" means:
16	16	(A) the negligent or wilful infliction of injury,
17	17	unreasonable confinement, intimidation, or cruel punishment with
18	18	resulting physical or emotional harm or pain to a recipient by the
19	19	recipient's caregiver, family member, or other individual who has
20	20	an ongoing relationship with the recipient; or
21	21	(B) sexual abuse of a recipient, including any
22	22	involuntary or nonconsensual sexual conduct that would constitute
23	23	an offense under Section 21.08, Penal Code (Indecent Exposure), or
24	24	Chapter 22, Penal Code (Assaultive Offenses), committed by the
25	25	recipient's caregiver, family member, or other individual who has
26	26	an ongoing relationship with the recipient.
27	27	(2) "Exploitation" means the illegal or improper act
28	28	or process of a caregiver, family member, or other individual who
29	29	has an ongoing relationship with the recipient using the resources
30	30	of a recipient for monetary or personal benefit, profit, or gain
31	31	without the informed consent of the recipient.
32	32	(3) "Neglect" means the failure to provide for one's
33	33	self the goods or services, including medical services, that are
34	34	necessary to avoid physical or emotional harm or pain or the failure
35	35	of a caregiver to provide the goods or services.
36	36	(4) "Recipient" means an individual, including a
37	37	patient, who receives a service.
38	38	(5) "Service" means a home health service as defined
39	39	by Section 142.001.
40	40	Sec. 142A.002. REPORTING OF ABUSE, NEGLECT, AND
41	41	EXPLOITATION. (a) A person, including an employee of a person
42	42	licensed under Chapter 142 to provide a service, who has cause to
43	43	believe that the physical or mental health or welfare of a recipient
44	44	has been or may be adversely affected by abuse, neglect, or
45	45	exploitation caused by another person shall report the abuse,
46	46	neglect, or exploitation in accordance with this chapter.
47	47	(b) Each person licensed under Chapter 142 to provide a
48	48	service shall require each employee providing a service, as a
49	49	condition of employment with the person, to sign a statement
50	50	acknowledging that the employee may be criminally liable for
51	51	failure to report the abuse, neglect, or exploitation.
52	52	(c) A person shall make an oral report to the commission
53	53	immediately on learning of the abuse, neglect, or exploitation and
54	54	shall make a written report to the commission not later than the
55	55	fifth day after the date the oral report is made.
56	56	Sec. 142A.003. CONTENTS OF REPORT. (a) A report of abuse,
57	57	neglect, or exploitation is nonaccusatory and reflects the
58	58	reporting person's belief that a recipient has been or will be
59	59	abused, neglected, or exploited or has died as a result of abuse or
60	60	neglect.
61	61	(b) The report must contain:
62	62	(1) the name and address of the recipient;
63	63	(2) the name and address of the person responsible for
64	64	the care of the recipient, if available; and
65	65	(3) other relevant information.
66	66	(c) Except for an anonymous report made under Section
67	67	142A.004, a report of abuse, neglect, or exploitation under Section
68	68	142A.002 must include the address or phone number of the person
69	69	making the report to enable an investigator to contact the person
70	70	for any necessary additional information. The phone number,
71	71	address, and name of the person making the report must be redacted
72	72	from any copy of the report or information from the report that is
73	73	released to the public, to the person licensed under Chapter 142 to
74	74	provide a service, or to an agent of the person licensed under
75	75	Chapter 142 to provide a service.
76	76	Sec. 142A.004. ANONYMOUS REPORTS OF ABUSE, NEGLECT, OR
77	77	EXPLOITATION. (a) The commission shall accept but discourage the
78	78	submission of an anonymous report of abuse, neglect, or
79	79	exploitation, and, subject to Subsection (b), act on the report in
80	80	the same manner as the commission acts on an acknowledged report.
81	81	(b) The commission is not required to investigate an
82	82	anonymous report that accuses a named individual of abuse, neglect,
83	83	or exploitation.
84	84	Sec. 142A.005. TELEPHONE HOTLINE; PROCESSING OF REPORTS.
85	85	(a) The commission shall operate a telephone hotline to:
86	86	(1) receive reports of abuse, neglect, or exploitation
87	87	under this chapter; and
88	88	(2) assign investigators.
89	89	(b) A person shall make a report of abuse, neglect, or
90	90	exploitation to the commission's telephone hotline or to a local or
91	91	state law enforcement agency. A report relating to abuse, neglect,
92	92	or exploitation or another complaint alleging conduct described in
93	93	Section 142A.007(c) must be made to the commission's telephone
94	94	hotline and to the law enforcement agency described by Section
95	95	142A.016(a).
96	96	(c) Except as provided by Section 142A.016, a local or state
97	97	law enforcement agency that receives a report of abuse, neglect, or
98	98	exploitation shall refer the report to the commission.
99	99	Sec. 142A.006. NOTICE. (a) Each person licensed under
100	100	Chapter 142 to provide a service shall prominently and
101	101	conspicuously post a sign for display in a public area of the
102	102	person's headquarters or office that is readily available to
103	103	employees and visitors.
104	104	(b) The sign must include the statement: "CASES OF
105	105	SUSPECTED ABUSE, NEGLECT, OR EXPLOITATION SHALL BE REPORTED TO THE
106	106	TEXAS HEALTH AND HUMAN SERVICES COMMISSION BY CALLING (insert
107	107	telephone hotline number)."
108	108	(c) A person licensed under Chapter 142 to provide a service
109	109	shall provide the telephone hotline number to an immediate family
110	110	member of each recipient of services on provision of the first
111	111	service to the recipient.
112	112	Sec. 142A.007. INVESTIGATION AND REPORT OF COMMISSION. (a)
113	113	The commission shall make a thorough investigation after receiving
114	114	an oral or written report of abuse, neglect, or exploitation under
115	115	Section 142A.002 or another complaint alleging abuse, neglect, or
116	116	exploitation.
117	117	(b) The primary purpose of the investigation is the
118	118	protection of the recipient.
119	119	(c) The commission shall begin the investigation:
120	120	(1) within 24 hours after receipt of a report or other
121	121	complaint of abuse, neglect, or exploitation alleging that:
122	122	(A) a recipient's health or safety is in imminent
123	123	danger;
124	124	(B) a recipient has recently died because of
125	125	conduct alleged in the report of abuse, neglect, or exploitation or
126	126	other complaint;
127	127	(C) a recipient has been hospitalized or been
128	128	treated in an emergency room because of conduct alleged in the
129	129	report of abuse, neglect, or exploitation or other complaint;
130	130	(D) a recipient has been a victim of any act or
131	131	attempted act described by Section 21.02, 21.11, 22.011, or 22.021,
132	132	Penal Code; or
133	133	(E) a recipient has suffered bodily injury, as
134	134	defined by Section 1.07, Penal Code, because of conduct alleged in
135	135	the report of abuse, neglect, or exploitation or other complaint;
136	136	or
137	137	(2) before the end of the next working day after the
138	138	date of receipt of the report of abuse, neglect, or exploitation or
139	139	other complaint if the report or complaint alleges the existence of
140	140	circumstances that could result in abuse, neglect, or exploitation
141	141	and that could place a recipient's health or safety in imminent
142	142	danger.
143	143	(d) The executive commissioner shall adopt rules governing
144	144	the conduct of investigations, including procedures to ensure the
145	145	complainant and the recipient, the recipient's next of kin, and any
146	146	person designated to receive information concerning the recipient
147	147	receive periodic information regarding the investigation.
148	148	(e) In investigating a report of abuse, neglect, or
149	149	exploitation or other complaint, the investigator for the
150	150	commission shall:
151	151	(1) make an unannounced visit to the place at which a
152	152	service is provided to the recipient to determine the nature and
153	153	cause of the alleged abuse, neglect, or exploitation of the
154	154	recipient;
155	155	(2) interview each available witness, including the
156	156	recipient who suffered the alleged abuse, neglect, or exploitation
157	157	if the recipient is able to communicate, or another recipient or
158	158	other witness identified by any source as having personal knowledge
159	159	relevant to the report of abuse, neglect, or exploitation or other
160	160	complaint;
161	161	(3) personally inspect any physical circumstance that
162	162	is relevant and material to the report of abuse, neglect, or
163	163	exploitation or other complaint and that may be objectively
164	164	observed;
165	165	(4) make a photographic record of any injury to a
166	166	recipient, subject to Subsection (m); and
167	167	(5) write an investigation report that includes:
168	168	(A) the investigator's personal observations;
169	169	(B) a review of relevant documents and records;
170	170	(C) a summary of each witness statement,
171	171	including the statement of the recipient who suffered the alleged
172	172	abuse, neglect, or exploitation and any other recipient interviewed
173	173	in the investigation; and
174	174	(D) a statement of the factual basis for the
175	175	findings for each incident or problem alleged in the report or other
176	176	allegation.
177	177	(f) An investigator shall conduct an interview under
178	178	Subsection (e) in private unless the witness expressly requests
179	179	that the interview not be private.
180	180	(g) Not later than the 30th day after the date the
181	181	investigation is complete, the investigator shall prepare the
182	182	written report required by Subsection (e). The commission shall
183	183	make the investigation report available to the public on request
184	184	after the date the commission's letter of determination is
185	185	complete. The commission shall delete from any copy made available
186	186	to the public:
187	187	(1) the name of:
188	188	(A) any recipient, unless the commission
189	189	receives written authorization from a recipient or the recipient's
190	190	legal representative requesting that the recipient's name be left
191	191	in the report;
192	192	(B) the person making the report of abuse,
193	193	neglect, or exploitation or other complaint; and
194	194	(C) a person interviewed in the investigation;
195	195	and
196	196	(2) photographs of any injury to the recipient.
197	197	(h) In the investigation, the commission shall determine:
198	198	(1) the nature, extent, and cause of the abuse,
199	199	neglect, or exploitation;
200	200	(2) the identity of the person responsible for the
201	201	abuse, neglect, or exploitation;
202	202	(3) the names and conditions of the other recipients;
203	203	(4) an evaluation of the persons responsible for the
204	204	care of the recipients;
205	205	(5) the adequacy of the environment in which a service
206	206	is provided; and
207	207	(6) any other information required by the commission.
208	208	(i) Before the completion of the investigation, the
209	209	commission shall file a petition for temporary care and protection
210	210	of the recipient if the commission determines the action is
211	211	necessary to protect the recipient from further abuse, neglect, or
212	212	exploitation.
213	213	(j) The commission shall make a complete final written
214	214	report of the investigation and submit the report and its
215	215	recommendations to the district attorney and, if a law enforcement
216	216	agency has not investigated the report of abuse, neglect, or
217	217	exploitation or other complaint, to the appropriate law enforcement
218	218	agency.
219	219	(k) Within 24 hours after receipt of a report of abuse,
220	220	neglect, or exploitation or other complaint described by Subsection
221	221	(c)(1), the commission shall report the report or complaint to the
222	222	law enforcement agency described by Section 142A.016(a). The
223	223	commission shall cooperate with that law enforcement agency in the
224	224	investigation of the report or complaint as described by Section
225	225	142A.016.
226	226	(l) The inability or unwillingness of a local law
227	227	enforcement agency to conduct a joint investigation under Section
228	228	142A.016 does not constitute grounds to prevent or prohibit the
229	229	commission from performing its duties under this chapter. The
230	230	commission shall document any instance in which a law enforcement
231	231	agency is unable or unwilling to conduct a joint investigation
232	232	under Section 142A.016.
233	233	(m) If the commission determines that, before a
234	234	photographic record of an injury to a recipient may be made under
235	235	Subsection (e), consent is required under state or federal law, the
236	236	investigator:
237	237	(1) shall seek to obtain any required consent; and
238	238	(2) may not make the photographic record unless the
239	239	consent is obtained.
240	240	Sec. 142A.008. CONFIDENTIALITY. A report, record, or
241	241	working paper used or developed in an investigation made under this
242	242	chapter and the name, address, and phone number of any person making
243	243	a report under this chapter are confidential and may be disclosed
244	244	only for purposes consistent with rules adopted by the executive
245	245	commissioner. The report, record, or working paper and the name,
246	246	address, and phone number of the person making the report shall be
247	247	disclosed to a law enforcement agency as necessary to allow the law
248	248	enforcement agency to investigate a report of abuse, neglect, or
249	249	exploitation or other complaint in accordance with Section
250	250	142A.016.
251	251	Sec. 142A.009. IMMUNITY. (a) A person who makes a report
252	252	as provided by this chapter is immune from civil or criminal
253	253	liability that, in the absence of the immunity, might result from
254	254	making the report.
255	255	(b) The immunity provided by this section extends to
256	256	participation in any judicial proceeding that results from the
257	257	report.
258	258	(c) This section does not apply to a person who makes a
259	259	report in bad faith or with malice.
260	260	Sec. 142A.010. PRIVILEGED COMMUNICATIONS. In a proceeding
261	261	regarding the abuse, neglect, or exploitation of a recipient or the
262	262	cause of any abuse, neglect, or exploitation, evidence may not be
263	263	excluded on the ground of privileged communication other than a
264	264	communication between an attorney and client.
265	265	Sec. 142A.011. CENTRAL REGISTRY. (a) The commission shall
266	266	maintain in the city of Austin a central registry of reported cases
267	267	of recipient abuse, neglect, or exploitation.
268	268	(b) The executive commissioner may adopt rules necessary to
269	269	carry out this section.
270	270	(c) The rules shall provide for cooperation with hospitals
271	271	and clinics in the exchange of reports of recipient abuse, neglect,
272	272	or exploitation.
273	273	Sec. 142A.012. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
274	274	person commits an offense if the person has cause to believe that a
275	275	recipient's physical or mental health or welfare has been or may be
276	276	further adversely affected by abuse, neglect, or exploitation and
277	277	knowingly fails to report in accordance with Section 142A.002.
278	278	(b) An offense under this section is a Class A misdemeanor.
279	279	Sec. 142A.013. MALICIOUS, RECKLESS, OR BAD FAITH REPORTING;
280	280	CRIMINAL PENALTY. (a) A person commits an offense if the person
281	281	makes a report under this chapter maliciously, recklessly, or in
282	282	bad faith.
283	283	(b) An offense under this section is a Class A misdemeanor.
284	284	(c) The criminal penalty provided by this section is in
285	285	addition to any civil penalties for which the person may be liable.
286	286	Sec. 142A.014. RETALIATION AGAINST EMPLOYEES PROHIBITED.
287	287	(a) In this section, "employee" means an individual who is an
288	288	employee of a person licensed under Chapter 142 to provide a service
289	289	or any other individual who provides services for compensation,
290	290	including a contract laborer for the person.
291	291	(b) An employee has a cause of action against a person
292	292	licensed under Chapter 142 to provide a service, or another
293	293	employee of the person, who suspends or terminates the employment
294	294	of the employee or otherwise disciplines, discriminates, or
295	295	retaliates against the employee for reporting to the employee's
296	296	supervisor, an administrator of the person, the commission, or a
297	297	law enforcement agency a violation of law or for initiating or
298	298	cooperating in any investigation or proceeding of a governmental
299	299	entity relating to the provision of the service.
300	300	(c) The petitioner may recover:
301	301	(1) the greater of $1,000 or actual damages, including
302	302	damages for mental anguish even if an injury other than mental
303	303	anguish is not shown, and damages for lost wages for a petitioner
304	304	whose employment was suspended or terminated;
305	305	(2) exemplary damages;
306	306	(3) court costs; and
307	307	(4) reasonable attorney's fees.
308	308	(d) In addition to the amounts that may be recovered under
309	309	Subsection (c), a person whose employment is suspended or
310	310	terminated is entitled to appropriate injunctive relief,
311	311	including, if applicable:
312	312	(1) reinstatement in the person's former position; and
313	313	(2) reinstatement of lost fringe benefits or seniority
314	314	rights.
315	315	(e) The petitioner, not later than the 90th day after the
316	316	date on which the person's employment is suspended or terminated,
317	317	must bring suit or notify the Texas Workforce Commission of the
318	318	petitioner's intent to sue under this section. A petitioner who
319	319	notifies the Texas Workforce Commission under this subsection must
320	320	bring suit not later than the 90th day after the date notice is
321	321	delivered to the commission. On receipt of the notice, the
322	322	commission shall notify the service of the petitioner's intent to
323	323	bring suit under this section.
324	324	(f) The petitioner has the burden of proof, except there is
325	325	a rebuttable presumption that the person's employment was suspended
326	326	or terminated for reporting abuse, neglect, or exploitation if the
327	327	person is suspended or terminated within 60 days after the date the
328	328	person reported the abuse, neglect, or exploitation in good faith.
329	329	(g) A suit under this section may be brought in the district
330	330	court of the county in which:
331	331	(1) the plaintiff resides;
332	332	(2) the plaintiff was employed by the defendant; or
333	333	(3) the defendant conducts business.
334	334	(h) Each person licensed under Chapter 142 to provide a
335	335	service shall require each employee of the person, as a condition of
336	336	employment, to sign a statement that the employee understands the
337	337	employee's rights under this section. The statement must be part of
338	338	the statement required under Section 142A.002. If a person
339	339	licensed under Chapter 142 to provide a service does not require an
340	340	employee to read and sign the statement, the periods under
341	341	Subsection (e) do not apply, and the petitioner must bring suit not
342	342	later than the second anniversary of the date on which the
343	343	petitioner's employment is suspended or terminated.
344	344	Sec. 142A.015. RETALIATION AGAINST VOLUNTEERS, RECIPIENTS,
345	345	OR FAMILY MEMBERS OR GUARDIANS OF RECIPIENTS. (a) A person
346	346	licensed under Chapter 142 to provide a service may not retaliate or
347	347	discriminate against a volunteer, recipient, or family member or
348	348	guardian of a recipient because the volunteer, recipient, family
349	349	member or guardian of a recipient, or any other person:
350	350	(1) makes a complaint or files a grievance concerning
351	351	the person;
352	352	(2) reports a violation of law; or
353	353	(3) initiates or cooperates in an investigation or
354	354	proceeding of a governmental entity relating to the provision of
355	355	the service.
356	356	(b) A volunteer, recipient, or family member or guardian of
357	357	a recipient who is retaliated or discriminated against in violation
358	358	of Subsection (a) is entitled to sue for:
359	359	(1) injunctive relief;
360	360	(2) the greater of $1,000 or actual damages, including
361	361	damages for mental anguish even if an injury other than mental
362	362	anguish is not shown;
363	363	(3) exemplary damages;
364	364	(4) court costs; and
365	365	(5) reasonable attorney's fees.
366	366	(c) A volunteer, recipient, or family member or guardian of
367	367	a recipient who seeks relief under this section must report the
368	368	alleged violation not later than the 180th day after the date the
369	369	alleged violation of this section occurred or was discovered by the
370	370	volunteer, recipient, or family member or guardian of the recipient
371	371	through reasonable diligence.
372	372	(d) A suit under this section may be brought in the district
373	373	court of the county in which the service is located or in a district
374	374	court of Travis County.
375	375	Sec. 142A.016. DUTIES OF LAW ENFORCEMENT; JOINT
376	376	INVESTIGATION. (a) The commission shall investigate a report of
377	377	abuse, neglect, or exploitation or other complaint described by
378	378	Section 142A.007(c)(1) jointly with:
379	379	(1) the municipal law enforcement agency, if the
380	380	service is provided at a location within the territorial boundaries
381	381	of a municipality; or
382	382	(2) the sheriff's department of the county in which the
383	383	service is provided, if the service is not provided at a location
384	384	within the territorial boundaries of a municipality.
385	385	(b) The law enforcement agency described by Subsection (a)
386	386	shall acknowledge the report of abuse, neglect, or exploitation or
387	387	other complaint and begin the joint investigation required by this
388	388	section within 24 hours after receipt of the report or complaint.
389	389	The law enforcement agency shall cooperate with the commission and
390	390	report to the commission the results of the investigation.
391	391	(c) The requirement that the law enforcement agency and the
392	392	commission conduct a joint investigation under this section does
393	393	not require that a representative of each agency be physically
394	394	present during all phases of the investigation or that each agency
395	395	participate equally in each activity conducted in the course of the
396	396	investigation.
397	397	SECTION 2. Section 142.009, Health and Safety Code, is
398	398	amended by amending Subsection (c) and adding Subsection (c-1) to
399	399	read as follows:
400	400	(c) Except as provided by Subsection (c-1), the commission
401	401	[The department] or its authorized representative shall
402	402	investigate each complaint received regarding the provision of home
403	403	health, hospice, habilitation, or personal assistance services and
404	404	may, as a part of the investigation:
405	405	(1) conduct an unannounced survey of a place of
406	406	business, including an inspection of medical and personnel records,
407	407	if the commission [department] has reasonable cause to believe that
408	408	the place of business is in violation of this chapter or a rule
409	409	adopted under this chapter;
410	410	(2) conduct an interview with a recipient of home
411	411	health, hospice, habilitation, or personal assistance services,
412	412	which may be conducted in the recipient's home if the recipient
413	413	consents;
414	414	(3) conduct an interview with a family member of a
415	415	recipient of home health, hospice, habilitation, or personal
416	416	assistance services who is deceased or other person who may have
417	417	knowledge of the care received by the deceased recipient of the home
418	418	health, hospice, habilitation, or personal assistance services; or
419	419	(4) interview a physician or other health care
420	420	practitioner, including a member of the personnel of a home and
421	421	community support services agency, who cares for a recipient of
422	422	home health, hospice, habilitation, or personal assistance
423	423	services.
424	424	(c-1) A complaint that constitutes a report of abuse,
425	425	neglect, or exploitation in connection with the provision of a home
426	426	health service is governed by Chapter 142A.
427	427	SECTION 3. Section 142.018, Health and Safety Code, is
428	428	repealed.
429	429	SECTION 4. The change in law made by this Act applies only
430	430	to a licensing action under Chapter 142, Health and Safety Code, for
431	431	conduct that occurs on or after the effective date of this Act.
432	432	Conduct that occurs before the effective date of this Act is
433	433	governed by the law as it existed on the date the conduct occurred,
434	434	and the former law is continued in effect for that purpose.
435	435	SECTION 5. This Act takes effect September 1, 2017.