85R8021 KKR-F
By: Cortez H.B. No. 1726
A BILL TO BE ENTITLED
AN ACT
relating to the abuse, neglect, and exploitation of recipients of
home health services; providing penalties; creating an offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle G, Title 2, Health and Safety Code, is
amended by adding Chapter 142A to read as follows:
CHAPTER 142A. REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF
RECIPIENTS OF CERTAIN SERVICES
Sec. 142A.001. DEFINITIONS. In this chapter:
(1) "Abuse" means:
(A) the negligent or wilful infliction of injury,
unreasonable confinement, intimidation, or cruel punishment with
resulting physical or emotional harm or pain to a recipient by the
recipient's caregiver, family member, or other individual who has
an ongoing relationship with the recipient; or
(B) sexual abuse of a recipient, including any
involuntary or nonconsensual sexual conduct that would constitute
an offense under Section 21.08, Penal Code (Indecent Exposure), or
Chapter 22, Penal Code (Assaultive Offenses), committed by the
recipient's caregiver, family member, or other individual who has
an ongoing relationship with the recipient.
(2) "Exploitation" means the illegal or improper act
or process of a caregiver, family member, or other individual who
has an ongoing relationship with the recipient using the resources
of a recipient for monetary or personal benefit, profit, or gain
without the informed consent of the recipient.
(3) "Neglect" means the failure to provide for one's
self the goods or services, including medical services, that are
necessary to avoid physical or emotional harm or pain or the failure
of a caregiver to provide the goods or services.
(4) "Recipient" means an individual, including a
patient, who receives a service.
(5) "Service" means a home health service as defined
by Section 142.001.
Sec. 142A.002. REPORTING OF ABUSE, NEGLECT, AND
EXPLOITATION. (a) A person, including an employee of a person
licensed under Chapter 142 to provide a service, who has cause to
believe that the physical or mental health or welfare of a recipient
has been or may be adversely affected by abuse, neglect, or
exploitation caused by another person shall report the abuse,
neglect, or exploitation in accordance with this chapter.
(b) Each person licensed under Chapter 142 to provide a
service shall require each employee providing a service, as a
condition of employment with the person, to sign a statement
acknowledging that the employee may be criminally liable for
failure to report the abuse, neglect, or exploitation.
(c) A person shall make an oral report to the commission
immediately on learning of the abuse, neglect, or exploitation and
shall make a written report to the commission not later than the
fifth day after the date the oral report is made.
Sec. 142A.003. CONTENTS OF REPORT. (a) A report of abuse,
neglect, or exploitation is nonaccusatory and reflects the
reporting person's belief that a recipient has been or will be
abused, neglected, or exploited or has died as a result of abuse or
neglect.
(b) The report must contain:
(1) the name and address of the recipient;
(2) the name and address of the person responsible for
the care of the recipient, if available; and
(3) other relevant information.
(c) Except for an anonymous report made under Section
142A.004, a report of abuse, neglect, or exploitation under Section
142A.002 must include the address or phone number of the person
making the report to enable an investigator to contact the person
for any necessary additional information. The phone number,
address, and name of the person making the report must be redacted
from any copy of the report or information from the report that is
released to the public, to the person licensed under Chapter 142 to
provide a service, or to an agent of the person licensed under
Chapter 142 to provide a service.
Sec. 142A.004. ANONYMOUS REPORTS OF ABUSE, NEGLECT, OR
EXPLOITATION. (a) The commission shall accept but discourage the
submission of an anonymous report of abuse, neglect, or
exploitation, and, subject to Subsection (b), act on the report in
the same manner as the commission acts on an acknowledged report.
(b) The commission is not required to investigate an
anonymous report that accuses a named individual of abuse, neglect,
or exploitation.
Sec. 142A.005. TELEPHONE HOTLINE; PROCESSING OF REPORTS.
(a) The commission shall operate a telephone hotline to:
(1) receive reports of abuse, neglect, or exploitation
under this chapter; and
(2) assign investigators.
(b) A person shall make a report of abuse, neglect, or
exploitation to the commission's telephone hotline or to a local or
state law enforcement agency. A report relating to abuse, neglect,
or exploitation or another complaint alleging conduct described in
Section 142A.007(c) must be made to the commission's telephone
hotline and to the law enforcement agency described by Section
142A.016(a).
(c) Except as provided by Section 142A.016, a local or state
law enforcement agency that receives a report of abuse, neglect, or
exploitation shall refer the report to the commission.
Sec. 142A.006. NOTICE. (a) Each person licensed under
Chapter 142 to provide a service shall prominently and
conspicuously post a sign for display in a public area of the
person's headquarters or office that is readily available to
employees and visitors.
(b) The sign must include the statement: "CASES OF
SUSPECTED ABUSE, NEGLECT, OR EXPLOITATION SHALL BE REPORTED TO THE
TEXAS HEALTH AND HUMAN SERVICES COMMISSION BY CALLING (insert
telephone hotline number)."
(c) A person licensed under Chapter 142 to provide a service
shall provide the telephone hotline number to an immediate family
member of each recipient of services on provision of the first
service to the recipient.
Sec. 142A.007. INVESTIGATION AND REPORT OF COMMISSION. (a)
The commission shall make a thorough investigation after receiving
an oral or written report of abuse, neglect, or exploitation under
Section 142A.002 or another complaint alleging abuse, neglect, or
exploitation.
(b) The primary purpose of the investigation is the
protection of the recipient.
(c) The commission shall begin the investigation:
(1) within 24 hours after receipt of a report or other
complaint of abuse, neglect, or exploitation alleging that:
(A) a recipient's health or safety is in imminent
danger;
(B) a recipient has recently died because of
conduct alleged in the report of abuse, neglect, or exploitation or
other complaint;
(C) a recipient has been hospitalized or been
treated in an emergency room because of conduct alleged in the
report of abuse, neglect, or exploitation or other complaint;
(D) a recipient has been a victim of any act or
attempted act described by Section 21.02, 21.11, 22.011, or 22.021,
Penal Code; or
(E) a recipient has suffered bodily injury, as
defined by Section 1.07, Penal Code, because of conduct alleged in
the report of abuse, neglect, or exploitation or other complaint;
or
(2) before the end of the next working day after the
date of receipt of the report of abuse, neglect, or exploitation or
other complaint if the report or complaint alleges the existence of
circumstances that could result in abuse, neglect, or exploitation
and that could place a recipient's health or safety in imminent
danger.
(d) The executive commissioner shall adopt rules governing
the conduct of investigations, including procedures to ensure the
complainant and the recipient, the recipient's next of kin, and any
person designated to receive information concerning the recipient
receive periodic information regarding the investigation.
(e) In investigating a report of abuse, neglect, or
exploitation or other complaint, the investigator for the
commission shall:
(1) make an unannounced visit to the place at which a
service is provided to the recipient to determine the nature and
cause of the alleged abuse, neglect, or exploitation of the
recipient;
(2) interview each available witness, including the
recipient who suffered the alleged abuse, neglect, or exploitation
if the recipient is able to communicate, or another recipient or
other witness identified by any source as having personal knowledge
relevant to the report of abuse, neglect, or exploitation or other
complaint;
(3) personally inspect any physical circumstance that
is relevant and material to the report of abuse, neglect, or
exploitation or other complaint and that may be objectively
observed;
(4) make a photographic record of any injury to a
recipient, subject to Subsection (m); and
(5) write an investigation report that includes:
(A) the investigator's personal observations;
(B) a review of relevant documents and records;
(C) a summary of each witness statement,
including the statement of the recipient who suffered the alleged
abuse, neglect, or exploitation and any other recipient interviewed
in the investigation; and
(D) a statement of the factual basis for the
findings for each incident or problem alleged in the report or other
allegation.
(f) An investigator shall conduct an interview under
Subsection (e) in private unless the witness expressly requests
that the interview not be private.
(g) Not later than the 30th day after the date the
investigation is complete, the investigator shall prepare the
written report required by Subsection (e). The commission shall
make the investigation report available to the public on request
after the date the commission's letter of determination is
complete. The commission shall delete from any copy made available
to the public:
(1) the name of:
(A) any recipient, unless the commission
receives written authorization from a recipient or the recipient's
legal representative requesting that the recipient's name be left
in the report;
(B) the person making the report of abuse,
neglect, or exploitation or other complaint; and
(C) a person interviewed in the investigation;
and
(2) photographs of any injury to the recipient.
(h) In the investigation, the commission shall determine:
(1) the nature, extent, and cause of the abuse,
neglect, or exploitation;
(2) the identity of the person responsible for the
abuse, neglect, or exploitation;
(3) the names and conditions of the other recipients;
(4) an evaluation of the persons responsible for the
care of the recipients;
(5) the adequacy of the environment in which a service
is provided; and
(6) any other information required by the commission.
(i) Before the completion of the investigation, the
commission shall file a petition for temporary care and protection
of the recipient if the commission determines the action is
necessary to protect the recipient from further abuse, neglect, or
exploitation.
(j) The commission shall make a complete final written
report of the investigation and submit the report and its
recommendations to the district attorney and, if a law enforcement
agency has not investigated the report of abuse, neglect, or
exploitation or other complaint, to the appropriate law enforcement
agency.
(k) Within 24 hours after receipt of a report of abuse,
neglect, or exploitation or other complaint described by Subsection
(c)(1), the commission shall report the report or complaint to the
law enforcement agency described by Section 142A.016(a). The
commission shall cooperate with that law enforcement agency in the
investigation of the report or complaint as described by Section
142A.016.
(l) The inability or unwillingness of a local law
enforcement agency to conduct a joint investigation under Section
142A.016 does not constitute grounds to prevent or prohibit the
commission from performing its duties under this chapter. The
commission shall document any instance in which a law enforcement
agency is unable or unwilling to conduct a joint investigation
under Section 142A.016.
(m) If the commission determines that, before a
photographic record of an injury to a recipient may be made under
Subsection (e), consent is required under state or federal law, the
investigator:
(1) shall seek to obtain any required consent; and
(2) may not make the photographic record unless the
consent is obtained.
Sec. 142A.008. CONFIDENTIALITY. A report, record, or
working paper used or developed in an investigation made under this
chapter and the name, address, and phone number of any person making
a report under this chapter are confidential and may be disclosed
only for purposes consistent with rules adopted by the executive
commissioner. The report, record, or working paper and the name,
address, and phone number of the person making the report shall be
disclosed to a law enforcement agency as necessary to allow the law
enforcement agency to investigate a report of abuse, neglect, or
exploitation or other complaint in accordance with Section
142A.016.
Sec. 142A.009. IMMUNITY. (a) A person who makes a report
as provided by this chapter is immune from civil or criminal
liability that, in the absence of the immunity, might result from
making the report.
(b) The immunity provided by this section extends to
participation in any judicial proceeding that results from the
report.
(c) This section does not apply to a person who makes a
report in bad faith or with malice.
Sec. 142A.010. PRIVILEGED COMMUNICATIONS. In a proceeding
regarding the abuse, neglect, or exploitation of a recipient or the
cause of any abuse, neglect, or exploitation, evidence may not be
excluded on the ground of privileged communication other than a
communication between an attorney and client.
Sec. 142A.011. CENTRAL REGISTRY. (a) The commission shall
maintain in the city of Austin a central registry of reported cases
of recipient abuse, neglect, or exploitation.
(b) The executive commissioner may adopt rules necessary to
carry out this section.
(c) The rules shall provide for cooperation with hospitals
and clinics in the exchange of reports of recipient abuse, neglect,
or exploitation.
Sec. 142A.012. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A
person commits an offense if the person has cause to believe that a
recipient's physical or mental health or welfare has been or may be
further adversely affected by abuse, neglect, or exploitation and
knowingly fails to report in accordance with Section 142A.002.
(b) An offense under this section is a Class A misdemeanor.
Sec. 142A.013. MALICIOUS, RECKLESS, OR BAD FAITH REPORTING;
CRIMINAL PENALTY. (a) A person commits an offense if the person
makes a report under this chapter maliciously, recklessly, or in
bad faith.
(b) An offense under this section is a Class A misdemeanor.
(c) The criminal penalty provided by this section is in
addition to any civil penalties for which the person may be liable.
Sec. 142A.014. RETALIATION AGAINST EMPLOYEES PROHIBITED.
(a) In this section, "employee" means an individual who is an
employee of a person licensed under Chapter 142 to provide a service
or any other individual who provides services for compensation,
including a contract laborer for the person.
(b) An employee has a cause of action against a person
licensed under Chapter 142 to provide a service, or another
employee of the person, who suspends or terminates the employment
of the employee or otherwise disciplines, discriminates, or
retaliates against the employee for reporting to the employee's
supervisor, an administrator of the person, the commission, or a
law enforcement agency a violation of law or for initiating or
cooperating in any investigation or proceeding of a governmental
entity relating to the provision of the service.
(c) The petitioner may recover:
(1) the greater of $1,000 or actual damages, including
damages for mental anguish even if an injury other than mental
anguish is not shown, and damages for lost wages for a petitioner
whose employment was suspended or terminated;
(2) exemplary damages;
(3) court costs; and
(4) reasonable attorney's fees.
(d) In addition to the amounts that may be recovered under
Subsection (c), a person whose employment is suspended or
terminated is entitled to appropriate injunctive relief,
including, if applicable:
(1) reinstatement in the person's former position; and
(2) reinstatement of lost fringe benefits or seniority
rights.
(e) The petitioner, not later than the 90th day after the
date on which the person's employment is suspended or terminated,
must bring suit or notify the Texas Workforce Commission of the
petitioner's intent to sue under this section. A petitioner who
notifies the Texas Workforce Commission under this subsection must
bring suit not later than the 90th day after the date notice is
delivered to the commission. On receipt of the notice, the
commission shall notify the service of the petitioner's intent to
bring suit under this section.
(f) The petitioner has the burden of proof, except there is
a rebuttable presumption that the person's employment was suspended
or terminated for reporting abuse, neglect, or exploitation if the
person is suspended or terminated within 60 days after the date the
person reported the abuse, neglect, or exploitation in good faith.
(g) A suit under this section may be brought in the district
court of the county in which:
(1) the plaintiff resides;
(2) the plaintiff was employed by the defendant; or
(3) the defendant conducts business.
(h) Each person licensed under Chapter 142 to provide a
service shall require each employee of the person, as a condition of
employment, to sign a statement that the employee understands the
employee's rights under this section. The statement must be part of
the statement required under Section 142A.002. If a person
licensed under Chapter 142 to provide a service does not require an
employee to read and sign the statement, the periods under
Subsection (e) do not apply, and the petitioner must bring suit not
later than the second anniversary of the date on which the
petitioner's employment is suspended or terminated.
Sec. 142A.015. RETALIATION AGAINST VOLUNTEERS, RECIPIENTS,
OR FAMILY MEMBERS OR GUARDIANS OF RECIPIENTS. (a) A person
licensed under Chapter 142 to provide a service may not retaliate or
discriminate against a volunteer, recipient, or family member or
guardian of a recipient because the volunteer, recipient, family
member or guardian of a recipient, or any other person:
(1) makes a complaint or files a grievance concerning
the person;
(2) reports a violation of law; or
(3) initiates or cooperates in an investigation or
proceeding of a governmental entity relating to the provision of
the service.
(b) A volunteer, recipient, or family member or guardian of
a recipient who is retaliated or discriminated against in violation
of Subsection (a) is entitled to sue for:
(1) injunctive relief;
(2) the greater of $1,000 or actual damages, including
damages for mental anguish even if an injury other than mental
anguish is not shown;
(3) exemplary damages;
(4) court costs; and
(5) reasonable attorney's fees.
(c) A volunteer, recipient, or family member or guardian of
a recipient who seeks relief under this section must report the
alleged violation not later than the 180th day after the date the
alleged violation of this section occurred or was discovered by the
volunteer, recipient, or family member or guardian of the recipient
through reasonable diligence.
(d) A suit under this section may be brought in the district
court of the county in which the service is located or in a district
court of Travis County.
Sec. 142A.016. DUTIES OF LAW ENFORCEMENT; JOINT
INVESTIGATION. (a) The commission shall investigate a report of
abuse, neglect, or exploitation or other complaint described by
Section 142A.007(c)(1) jointly with:
(1) the municipal law enforcement agency, if the
service is provided at a location within the territorial boundaries
of a municipality; or
(2) the sheriff's department of the county in which the
service is provided, if the service is not provided at a location
within the territorial boundaries of a municipality.
(b) The law enforcement agency described by Subsection (a)
shall acknowledge the report of abuse, neglect, or exploitation or
other complaint and begin the joint investigation required by this
section within 24 hours after receipt of the report or complaint.
The law enforcement agency shall cooperate with the commission and
report to the commission the results of the investigation.
(c) The requirement that the law enforcement agency and the
commission conduct a joint investigation under this section does
not require that a representative of each agency be physically
present during all phases of the investigation or that each agency
participate equally in each activity conducted in the course of the
investigation.
SECTION 2. Section 142.009, Health and Safety Code, is
amended by amending Subsection (c) and adding Subsection (c-1) to
read as follows:
(c) Except as provided by Subsection (c-1), the commission
[The department] or its authorized representative shall
investigate each complaint received regarding the provision of home
health, hospice, habilitation, or personal assistance services 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 commission [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, habilitation, 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, habilitation, 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, habilitation, 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, habilitation, or personal assistance
services.
(c-1) A complaint that constitutes a report of abuse,
neglect, or exploitation in connection with the provision of a home
health service is governed by Chapter 142A.
SECTION 3. Section 142.018, Health and Safety Code, is
repealed.
SECTION 4. The change in law made by this Act applies only
to a licensing action under Chapter 142, Health and Safety Code, for
conduct that occurs on or after the effective date of this Act.
Conduct that occurs before the effective date of this Act is
governed by the law as it existed on the date the conduct occurred,
and the former law is continued in effect for that purpose.
SECTION 5. This Act takes effect September 1, 2017.