Texas 2017 - 85th Regular

Texas Senate Bill SB792 Compare Versions

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

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1	1	85R6383 EES-F
2	2	By: Miles S.B. No. 792
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to requiring financial institutions to report the
8	8	suspected financial abuse of elderly persons; providing a civil and
9	9	criminal penalty.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Subtitle Z, Title 3, Finance Code, is amended by
12	12	adding Chapter 280 to read as follows:
13	13	CHAPTER 280. REPORTING OF FINANCIAL ABUSE OF ELDERLY PERSONS
14	14	Sec. 280.001. DEFINITIONS. (a) In this chapter:
15	15	(1) "Adult protective services division" means the
16	16	adult protective services division of the Department of Family and
17	17	Protective Services.
18	18	(2) "Elderly person" has the meaning assigned by
19	19	Section 48.002, Human Resources Code.
20	20	(3) "Finance commission" means the Finance Commission
21	21	of Texas.
22	22	(4) "Financial abuse" means the wrongful or negligent
23	23	taking, appropriation, obtaining, retention, or use of or assisting
24	24	in the wrongful or negligent taking, appropriation, obtaining,
25	25	retention, or use of the property of an elderly person by any means,
26	26	including by exerting undue influence. The term includes financial
27	27	exploitation.
28	28	(5) "Financial exploitation" means the wrongful or
29	29	negligent taking, appropriation, obtaining, retention, or use of
30	30	the money or other property of an elderly person by a person who has
31	31	a relationship of confidence or trust with the elderly person.
32	32	Financial exploitation may involve coercion, manipulation,
33	33	threats, intimidation, misrepresentation, or the exerting of undue
34	34	influence. The term includes:
35	35	(A) the breach of a fiduciary relationship,
36	36	including the misuse of a durable power of attorney or the abuse of
37	37	guardianship powers, that results in the unauthorized
38	38	appropriation, sale, or transfer of the elderly person's property;
39	39	(B) the unauthorized taking of personal assets;
40	40	(C) the misappropriation, misuse, or
41	41	unauthorized transfer of the elderly person's money from a personal
42	42	or a joint account; and
43	43	(D) the negligent or intentional failure to
44	44	effectively use the elderly person's income and assets for the
45	45	necessities required for the elderly person's support and
46	46	maintenance.
47	47	(6) "Financial institution" has the meaning assigned
48	48	by Section 277.001.
49	49	(7) "Financial regulatory officials" means the
50	50	banking commissioner of Texas, the savings and mortgage lending
51	51	commissioner, and the credit union commissioner.
52	52	(b) For purposes of Subsection (a)(5), a person has a
53	53	relationship of confidence or trust with an elderly person if the
54	54	person:
55	55	(1) is a parent, spouse, adult child, or other
56	56	relative by blood or marriage of the elderly person;
57	57	(2) is a joint tenant or tenant-in-common with the
58	58	elderly person;
59	59	(3) has a legal or fiduciary relationship with the
60	60	elderly person;
61	61	(4) is a financial planner or investment professional
62	62	who provides services to the elderly person; or
63	63	(5) is a paid or unpaid caregiver of the elderly
64	64	person.
65	65	Sec. 280.002. REPORTING FINANCIAL ABUSE OF ELDERLY PERSONS.
66	66	(a) Notwithstanding any other law, if an officer or employee of a
67	67	financial institution has a good faith belief that financial abuse
68	68	of an elderly person has occurred or is occurring, the financial
69	69	institution shall:
70	70	(1) subject to Subchapter B-1, Chapter 48, Human
71	71	Resources Code, submit a report notifying the adult protective
72	72	services division of the suspected financial abuse; and
73	73	(2) notify the appropriate local law enforcement
74	74	agency with jurisdiction over the municipality or county in which
75	75	the elderly person resides of the suspected financial abuse for
76	76	purposes of investigating and determining whether an offense under
77	77	Section 32.53, Penal Code, or other law has occurred.
78	78	(b) The report and notification required by Subsection (a)
79	79	must be made:
80	80	(1) by telephone or electronic means, not later than
81	81	24 hours after the financial institution becomes aware of the
82	82	suspected financial abuse; and
83	83	(2) in writing, not later than the third business day
84	84	after the date the financial institution becomes aware of the
85	85	suspected financial abuse.
86	86	(c) For purposes of Subsection (a), an officer's or
87	87	employee's good faith belief must be acquired in connection with
88	88	the provision of financial services by the financial institution to
89	89	or on behalf of the elderly person and must be based on:
90	90	(1) the officer's or employee's observation or
91	91	knowledge of an incident of suspected financial abuse, if the
92	92	officer or employee has direct contact with the elderly person; or
93	93	(2) the presence of information indicating potential
94	94	financial abuse during a review or approval process performed by
95	95	the officer or employee in connection with the provision of
96	96	financial services, if the officer or employee does not have direct
97	97	contact with the elderly person but reviews or approves the elderly
98	98	person's financial documents, records, or transactions.
99	99	(d) Nothing in this section shall be construed to require a
100	100	financial institution to investigate an allegation of financial
101	101	abuse made by an elderly person or other person.
102	102	Sec. 280.003. CONFIDENTIALITY OF INFORMATION. (a) Except
103	103	as provided by Subsection (b), the following information is
104	104	confidential and is not subject to disclosure to the public, except
105	105	under court order:
106	106	(1) the information contained in a report submitted or
107	107	notification made under this chapter;
108	108	(2) the name of the financial institution making the
109	109	report or notification or the identity of the officers or employees
110	110	described by Section 280.002(a); and
111	111	(3) information provided by or submitted to a
112	112	financial institution in connection with an investigation arising
113	113	out of a report submitted or notification made under Section
114	114	280.002.
115	115	(b) Information that is confidential under Subsection (a)
116	116	may be disclosed only:
117	117	(1) to the adult protective services division or
118	118	another state agency, a law enforcement agency, or the attorney
119	119	general, in connection with the reporting of or an investigation of
120	120	suspected financial abuse of the elderly person to whom the
121	121	information pertains;
122	122	(2) to, or as authorized by, the elderly person or the
123	123	guardian of the elderly person, unless the financial institution
124	124	suspects the guardian of financial abuse of the elderly person; or
125	125	(3) as part of a civil or criminal action related to
126	126	the reported financial abuse.
127	127	(c) A person commits an offense if the person discloses
128	128	information in violation of this section. An offense under this
129	129	section is a Class C misdemeanor.
130	130	Sec. 280.004. IMMUNITY FROM LIABILITY. A financial
131	131	institution that is acting in good faith and that submits a report
132	132	or makes a notification under this chapter is immune from any
133	133	criminal or civil liability arising from:
134	134	(1) the report or notification; or
135	135	(2) participation in any judicial proceeding arising
136	136	from the report or notification.
137	137	Sec. 280.005. CIVIL PENALTY. (a) A financial institution
138	138	that fails to submit a report or make a notification in violation of
139	139	this chapter is liable to this state for a civil penalty in an
140	140	amount not to exceed $1,000, unless a court finds the violation to
141	141	be wilful, in which case the amount of the civil penalty may not
142	142	exceed $5,000.
143	143	(b) The attorney general may bring an action on behalf of
144	144	this state to recover a civil penalty under Subsection (a).
145	145	Sec. 280.006. RULEMAKING. Subject to Section 48.072, Human
146	146	Resources Code, the finance commission, the Credit Union
147	147	Commission, and the executive commissioner of the Health and Human
148	148	Services Commission, after consulting with the financial
149	149	regulatory officials and the Department of Family and Protective
150	150	Services, shall jointly adopt rules necessary to implement this
151	151	chapter, including rules that require each financial institution to
152	152	implement a training program to:
153	153	(1) assist its officers and employees in recognizing
154	154	signs of potential financial abuse of an elderly person; and
155	155	(2) inform its officers and employees about the
156	156	reporting and notification requirements of this chapter.
157	157	SECTION 2. Section 59.006(a), Finance Code, is amended to
158	158	read as follows:
159	159	(a) This section provides the exclusive method for
160	160	compelled discovery of a record of a financial institution relating
161	161	to one or more customers but does not create a right of privacy in a
162	162	record. This section does not apply to and does not require or
163	163	authorize a financial institution to give a customer notice of:
164	164	(1) a demand or inquiry from a state or federal
165	165	government agency authorized by law to conduct an examination of
166	166	the financial institution;
167	167	(2) a record request from a state or federal
168	168	government agency or instrumentality under statutory or
169	169	administrative authority that provides for, or is accompanied by, a
170	170	specific mechanism for discovery and protection of a customer
171	171	record of a financial institution, including a record request from
172	172	a federal agency subject to the Right to Financial Privacy Act of
173	173	1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
174	174	Internal Revenue Service under Section 1205, Internal Revenue Code
175	175	of 1986;
176	176	(3) a record request from or report to a government
177	177	agency arising out of:
178	178	(A) the investigation or prosecution of a
179	179	criminal offense;
180	180	(B) the investigation of alleged abuse, neglect,
181	181	or exploitation of an elderly or disabled person or of alleged
182	182	financial abuse of an elderly person in accordance with Chapter 48,
183	183	Human Resources Code; or
184	184	(C) the assessment for or provision of
185	185	guardianship services under Subchapter E, Chapter 161, Human
186	186	Resources Code;
187	187	(4) a record request in connection with a garnishment
188	188	proceeding in which the financial institution is garnishee and the
189	189	customer is debtor;
190	190	(5) a record request by a duly appointed receiver for
191	191	the customer;
192	192	(6) an investigative demand or inquiry from a state
193	193	legislative investigating committee;
194	194	(7) an investigative demand or inquiry from the
195	195	attorney general of this state as authorized by law other than the
196	196	procedural law governing discovery in civil cases;
197	197	(8) the voluntary use or disclosure of a record by a
198	198	financial institution subject to other applicable state or federal
199	199	law; or
200	200	(9) a record request in connection with an
201	201	investigation conducted under Section 1054.151, 1054.152, or
202	202	1102.001, Estates Code.
203	203	SECTION 3. Subchapter A, Chapter 48, Human Resources Code,
204	204	is amended by adding Section 48.008 to read as follows:
205	205	Sec. 48.008. CONSOLIDATION OF CERTAIN REPORTS. If
206	206	cost-effective and feasible, the executive commissioner by rule may
207	207	consolidate the form and procedures used to submit a report under
208	208	Sections 48.051 and 48.072.
209	209	SECTION 4. Chapter 48, Human Resources Code, is amended by
210	210	adding Subchapter B-1 to read as follows:
211	211	SUBCHAPTER B-1. FINANCIAL ABUSE OF ELDERLY PERSONS
212	212	Sec. 48.071. DEFINITIONS. In this subchapter, "financial
213	213	abuse," "financial institution," and "financial regulatory
214	214	officials" have the meanings assigned by Section 280.001, Finance
215	215	Code.
216	216	Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL ABUSE.
217	217	(a) The executive commissioner, after consultation with the
218	218	financial regulatory officials, by rule shall prescribe the form
219	219	and content of a report submitted by a financial institution under
220	220	Section 280.002, Finance Code. A report submitted by a financial
221	221	institution under Section 280.002, Finance Code, constitutes a
222	222	report of suspected financial abuse of an elderly person for
223	223	purposes of this subchapter.
224	224	(b) In adopting rules under this section, the executive
225	225	commissioner shall ensure that a report of suspected financial
226	226	abuse of an elderly person described by Subsection (a) includes to
227	227	the extent possible the same information required under Section
228	228	48.051(d).
229	229	(c) A financial institution that submits a report to the
230	230	department of suspected financial abuse of an elderly person under
231	231	Section 280.002, Finance Code, in accordance with this section
232	232	satisfies the requirement of making a report of suspected abuse,
233	233	neglect, or exploitation, as applicable, under Section 48.051, if
234	234	applicable.
235	235	Sec. 48.073. ASSESSMENT, INVESTIGATION, AND DISPOSITION OF
236	236	REPORTS. The executive commissioner shall adopt rules regarding
237	237	the assessment, investigation, and disposition of a report of
238	238	suspected financial abuse of an elderly person received under
239	239	Section 280.002, Finance Code. The executive commissioner shall
240	240	model rules adopted under this section after the assessment,
241	241	investigation, and disposition procedures used for reports of
242	242	abuse, neglect, or exploitation received by the department under
243	243	this chapter, other than a report received under Subchapter F, and
244	244	shall include rules requiring:
245	245	(1) a risk assessment similar to the assessment
246	246	required under Section 48.004;
247	247	(2) investigations similar to the investigations
248	248	required under Subchapter D, including requirements that the
249	249	department:
250	250	(A) take action on a report within the timeframe
251	251	and manner provided by Section 48.151;
252	252	(B) perform an interview with the elderly person
253	253	similar to the interview required by Section 48.152;
254	254	(C) if appropriate, implement a system to
255	255	investigate complex cases similar to the system implemented under
256	256	Section 48.1521;
257	257	(D) report criminal conduct to appropriate law
258	258	enforcement agencies similar to Section 48.1522; and
259	259	(E) review certain cases involving multiple
260	260	reports under Section 48.051 and this subchapter similar to Section
261	261	48.1523; and
262	262	(3) a determination of services similar to the
263	263	determination required by Section 48.202.
264	264	Sec. 48.074. AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The
265	265	department or another appropriate state agency has the authority to
266	266	act on or with respect to an allegation of financial abuse of an
267	267	elderly person under this subchapter to the same extent the
268	268	department or other agency has the authority to act on or with
269	269	respect to an allegation of abuse, neglect, or exploitation under
270	270	Subchapter B.
271	271	Sec. 48.075. ACCESS TO INVESTIGATION. (a) To implement an
272	272	investigation of reported financial abuse of an elderly person, the
273	273	probate court, as defined by Section 22.007, Estates Code, may
274	274	authorize entry of the place of residence of an elderly person.
275	275	(b) A peace officer shall accompany and assist the person
276	276	making a court-ordered entry under this section, if in the opinion
277	277	of the court such action is necessary.
278	278	Sec. 48.076. INTERFERENCE WITH INVESTIGATION OR SERVICES
279	279	PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a
280	280	person, including a guardian, may not interfere with:
281	281	(1) an investigation by the department or by another
282	282	protective services agency of suspected financial abuse of an
283	283	elderly person; or
284	284	(2) the provision of protective services to an elderly
285	285	person.
286	286	(b) The department or another protective services agency
287	287	may petition the appropriate court to enjoin any interference with:
288	288	(1) an investigation of suspected financial abuse of
289	289	an elderly person under this subchapter; or
290	290	(2) the provision of protective services such as
291	291	removal of an elderly person to safer surroundings or safeguarding
292	292	the person's resources from financial abuse.
293	293	Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission,
294	294	the banking commissioner of Texas, the savings and mortgage lending
295	295	commissioner, the credit union commissioner, and the department
296	296	shall enter into a memorandum of understanding regarding the
297	297	reporting and investigation of suspected financial abuse of an
298	298	elderly person under this subchapter.
299	299	Sec. 48.078. CONFIDENTIALITY. (a) All files, reports,
300	300	records, communications, and working papers used or developed by
301	301	the department or other state agency in an investigation made under
302	302	this subchapter or in providing services as a result of an
303	303	investigation are confidential and not subject to disclosure under
304	304	Chapter 552, Government Code.
305	305	(b) The department or investigating state agency may
306	306	establish procedures to exchange with another state agency or
307	307	governmental entity information that is necessary for the
308	308	department, state agency, or entity to properly execute its
309	309	respective duties and responsibilities to provide services to
310	310	elderly persons under this chapter or other law. An exchange of
311	311	information under this subsection does not affect whether the
312	312	information is subject to disclosure under Chapter 552, Government
313	313	Code.
314	314	SECTION 5. Subchapter C, Chapter 48, Human Resources Code,
315	315	is amended by adding Section 48.104 to read as follows:
316	316	Sec. 48.104. APPLICABILITY. (a) This subchapter does not
317	317	apply to a report of financial abuse of an elderly person made under
318	318	Subchapter B-1.
319	319	(b) The confidentiality of information received or provided
320	320	by the department in connection with a report of financial abuse of
321	321	an elderly person made under Subchapter B-1 is governed by Section
322	322	48.078 and by Section 280.003, Finance Code.
323	323	SECTION 6. Subchapter D, Chapter 48, Human Resources Code,
324	324	is amended by adding Section 48.1511 to read as follows:
325	325	Sec. 48.1511. APPLICABILITY. This subchapter does not
326	326	apply to an investigation conducted under Subchapter B-1 unless the
327	327	executive commissioner by rule requires the application of a
328	328	provision of this subchapter.
329	329	SECTION 7. This Act takes effect September 1, 2017.