88R20423 KKR-F
By: Noble H.B. No. 4696
Substitute the following for H.B. No. 4696:
By: Hull C.S.H.B. No. 4696
A BILL TO BE ENTITLED
AN ACT
relating to the reporting and investigation of certain allegations
of abuse, neglect, and exploitation, the making and investigation
of complaints alleging violations of certain health facility
licensing requirements, and the content of the employee misconduct
registry.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 261.005, Family Code, is amended to read
as follows:
Sec. 261.005. REFERENCE TO EXECUTIVE COMMISSIONER OR
COMMISSION. Unless otherwise provided by a provision of this
chapter, in [In] this chapter:
(1) a reference to the executive commissioner or the
executive commissioner of the Health and Human Services Commission
means the commissioner of the department; and
(2) a reference to the Health and Human Services
Commission means the department.
SECTION 2. Section 261.105(c-1), Family Code, is amended to
read as follows:
(c-1) Notwithstanding Subsections (b) and (c), if a report
under this section relates to a child with an intellectual
disability receiving services in a state supported living center as
defined by Section 531.002, Health and Safety Code, or the ICF-IID
component of the Rio Grande State Center, the department shall
immediately notify the commission and the commission shall proceed
with the investigation of the report as provided by Section
261.404. Notwithstanding Section 261.005, in this subsection,
"commission" means the Health and Human Services Commission.
SECTION 3. Section 261.404, Family Code, is amended by
amending Subsections (a), (a-1), (a-2), (a-3), (b), (c), and (d)
and adding Subsection (a-4) to read as follows:
(a) Notwithstanding Section 261.005, in this section:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(a-1) The commission [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
commission [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.
(a-2) [(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-3) [(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-4) [(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 commission [department] shall investigate a [the]
report under this section under rules developed by the executive
commissioner.
(c) If a report under this section relates to a child with an
intellectual disability receiving services in a state supported
living center or the ICF-IID component of the Rio Grande State
Center, the commission [department] shall, within 24 hours [one
hour] of receiving the report, notify the facility in which the
child is receiving services of the allegations in the report.
(d) If, during the course of the commission's [department's]
investigation of reported abuse, neglect, or exploitation, a
caseworker of the commission [department] or the caseworker's
supervisor has cause to believe that a child with an intellectual
disability described by Subsection (c) has been abused, neglected,
or exploited by another person in a manner that constitutes a
criminal offense under any law, including Section 22.04, Penal
Code, the caseworker shall immediately notify the commission's
[Health and Human Services Commission's] office of inspector
general and promptly provide the commission's office of inspector
general with a copy of the commission's [department's]
investigation report.
SECTION 4. Section 142.009(j), Health and Safety Code, is
amended to read as follows:
(j) Except as provided by Subsections (h) and (l), a [an
on-site] survey may [must] be conducted within 18 months after a
survey for an initial license. After that time, an on-site survey
must be conducted at least every 36 months.
SECTION 5. Section 142.018(b), Health and Safety Code, is
amended to read as follows:
(b) A home and community support services agency that has
cause to believe that a person receiving services from the agency
has been abused, exploited, or neglected by an employee of the
agency shall report the information to[:
[(1)] the commission [department; and
[(2) the Department of Family and Protective Services
or other appropriate state agency as required by Section 48.051,
Human Resources Code].
SECTION 6. Section 252.039, Health and Safety Code, is
amended to read as follows:
Sec. 252.039. POSTING. Each facility shall prominently and
conspicuously post for display in a public area of the facility that
is readily available to residents, employees, and visitors:
(1) the license issued under this chapter;
(2) a sign prescribed by the commission [department]
that specifies complaint procedures established under this chapter
or rules adopted under this chapter and that specifies how
complaints may be registered with the commission [department];
(3) a notice in a form prescribed by the commission
[department] stating that inspection and related reports are
available at the facility for public inspection and providing the
commission's [department's] toll-free telephone number that may be
used to obtain information concerning the facility;
(4) a concise summary of the most recent inspection
report relating to the facility;
(5) a notice providing instructions for reporting an
allegation of abuse, neglect, or exploitation to the commission
[Department of Family and Protective Services]; and
(6) a notice that employees, other staff, residents,
volunteers, and family members and guardians of residents are
protected from discrimination or retaliation as provided by
Sections 252.132 and 252.133.
SECTION 7. Section 252.121(a), Health and Safety Code, is
amended to read as follows:
(a) A person, including an owner or employee of a facility,
who has cause to believe that a resident is being or has been
subjected to abuse, neglect, or exploitation shall report the
suspected abuse, neglect, or exploitation to the commission
[Department of Family and Protective Services, as required by
Chapter 48, Human Resources Code, or Chapter 261, Family Code, as
appropriate]. The commission [Department of Family and Protective
Services] shall investigate the allegation of abuse, neglect, or
exploitation in the manner prescribed by the commission [provided
by Chapter 48, Human Resources Code, or Section 261.404, Family
Code, as applicable].
SECTION 8. Section 252.125, Health and Safety Code, is
amended to read as follows:
Sec. 252.125. IMMEDIATE REMOVAL TO PROTECT RESIDENT.
Before the completion of the investigation by the commission
[Department of Family and Protective Services], the commission
[department] shall file a petition for temporary care and
protection of a resident if the commission [department]
determines[, based on information provided to the department by the
Department of Family and Protective Services,] that immediate
removal is necessary to protect the resident from further abuse,
neglect, or exploitation.
SECTION 9. Sections 253.001(1) and (4), Health and Safety
Code, are amended to read as follows:
(1) "Commission" means the Health and Human Services
Commission ["Commissioner" means the commissioner of aging and
disability services].
(4) "Facility" means:
(A) a nursing facility[:
[(i)] licensed by the commission under
Chapter 242 [department]; [or]
(B) an intermediate care facility for
individuals with an intellectual disability [(ii)] licensed by the
commission under Chapter 252;
(C) [(B)] an adult foster care provider that
contracts with the commission [department];
(D) [(C)] a home and community support services
agency licensed by the commission [department] under Chapter 142;
[or]
(E) [(D)] a prescribed pediatric extended care
center licensed by the commission under Chapter 248A;
(F) an assisted living facility licensed by the
commission under Chapter 247;
(G) a day activity and health services facility
licensed by the commission under Chapter 103, Human Resources Code;
(H) a residential child-care facility as defined
by Section 42.002, Human Resources Code, at which an elderly person
or a person with a disability resides or is in the facility's care;
(I) a provider who provides home and
community-based services under the home and community-based
services (HCS) waiver program or the Texas home living (TxHmL)
waiver program; or
(J) a facility that is exempt from licensure
under Section 252.003.
SECTION 10. Section 260A.001, Health and Safety Code, is
amended by adding Subdivision (1-a) to read as follows:
(1-a) "Commission" means the Health and Human Services
Commission.
SECTION 11. Section 260A.002, Health and Safety Code, is
amended by amending Subsections (a-1) and (c) and adding Subsection
(d) 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 commission [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.
(c) Except as provided by Subsection (d), a [A] person shall
make an oral or electronic report immediately on learning of the
abuse, neglect, or exploitation [and shall make a written report to
the department not later than the fifth day after the oral report is
made].
(d) A facility or service provider shall submit a provider
investigation report to the commission not later than the fifth day
after the date a report is made under Subsection (c).
SECTION 12. Section 260A.007, Health and Safety Code, is
amended by amending Subsection (e) and adding Subsection (e-1) to
read as follows:
(e) In investigating the report of abuse, neglect,
exploitation, or other complaint, the investigator for the
department shall:
(1) conduct [make] an unannounced investigation
[visit to the facility] to determine the nature and cause of the
alleged abuse, neglect, or exploitation of the resident;
(2) interview each available witness, including the
resident who suffered the alleged abuse, neglect, or exploitation
if the resident is able to communicate or another resident or other
witness identified by any source as having personal knowledge
relevant to the report of abuse, neglect, exploitation, or other
complaint;
(3) [personally] inspect any physical circumstance
that is relevant and material to the report of abuse, neglect,
exploitation, or other complaint and that may be objectively
observed;
(4) if an on-site investigation is conducted, make a
photographic record of any injury to a resident, subject to
Subsection (n);
(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 resident that suffered the alleged
abuse, neglect, or exploitation and any other resident 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; and
(6) for a resident of an institution or assisted
living facility, inspect any court order appointing a guardian of
the resident who was the subject of the alleged abuse, neglect, or
exploitation that is maintained in the resident's medical records
under Section 242.019 or 247.070.
(e-1) In addition to the requirements under Subsection (e),
the commission shall make an unannounced visit to a facility to
conduct an investigation of abuse or neglect.
SECTION 13. Section 48.0021, Human Resources Code, is
amended to read as follows:
Sec. 48.0021. REFERENCE TO COMMISSION OR EXECUTIVE
COMMISSIONER. Unless otherwise provided by a provision of this
chapter, in [In] this chapter:
(1) a reference to the Health and Human Services
Commission means the Department of Family and Protective Services;
and
(2) a reference to the executive commissioner means
the commissioner of the Department of Family and Protective
Services.
SECTION 14. Section 48.051, Human Resources Code, is
amended by adding Subsection (b-1) and amending Subsection (c) to
read as follows:
(b-1) This subsection applies only to a provider under the
home and community-based services (HCS) waiver program or the Texas
home living (TxHmL) waiver program, an intermediate care facility
licensed under Chapter 252, Health and Safety Code, or a home and
community support services agency licensed under Chapter 142,
Health and Safety Code. Except as provided by Subsections (a) and
(b), a person, including an officer, employee, agent, contractor,
or subcontractor of a facility or provider subject to this
subsection, having cause to believe that an individual receiving
services from the facility or provider is in the state of abuse,
neglect, or exploitation shall immediately report to the commission
the information required by Subsection (d). Notwithstanding
Section 48.0021, in this subsection "commission" means the Health
and Human Services Commission.
(c) The duty imposed by Subsections (a), (b), and (b-1)
[(b)] applies without exception to a person whose knowledge
concerning possible abuse, neglect, or exploitation is obtained
during the scope of the person's employment or whose professional
communications are generally confidential, including an attorney,
clergy member, medical practitioner, social worker, employee or
member of a board that licenses or certifies a professional, and
mental health professional.
SECTION 15. Section 48.251(a), Human Resources Code, is
amended by adding Subdivisions (1-a) and (2-a) and amending
Subdivision (3) to read as follows:
(1-a) "Commission" means the Health and Human Services
Commission, notwithstanding Section 48.0021.
(2-a) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission,
notwithstanding Section 48.0021.
(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; and
(C) a residential child-care facility as defined
by Section 42.002 at which an elderly person or a person with a
disability resides or is in the facility's care.
SECTION 16. Sections 48.252(b) and (c), Human Resources
Code, are amended to read as follows:
(b) The department may not investigate under this
subchapter reports of 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 commission
[appropriate state agency] for investigation.
(c) The commission [department] shall receive and
investigate under this subchapter reports of abuse, neglect, or
exploitation of:
(1) 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; and
(2) an elderly person or a person with a disability who
lives in or is in the care of a residential child-care facility as
defined by Section 42.002.
SECTION 17. Sections 48.253(a), (b), and (c), Human
Resources Code, are amended to read as follows:
(a) On receipt by the commission [department] of a report of
alleged abuse, neglect, or exploitation under this subchapter, the
commission [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
commission [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 commission [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 commission [department] complete
access during an investigation to:
(A) all sites owned, operated, or controlled by
the provider; and
(B) clients and client records.
SECTION 18. Sections 48.254(a) and (c), Human Resources
Code, are amended to read as follows:
(a) The executive commissioner by rule shall establish
procedures for the commission [department] to use to 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].
(c) A provider that receives the findings of an [a
completed] investigation from the commission report under
Subsection (a) shall forward the findings [report] to the managed
care organization with which the provider contracts for services
for the alleged victim.
SECTION 19. Sections 48.255(a) and (b), Human Resources
Code, are amended to read as follows:
(a) The executive commissioner shall adopt 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; and
(2) [establish procedures for resolving disagreements
between the department and health and human services agencies
concerning the department's investigation findings; and
[(3)] provide for an appeals process by the commission
[department] for the alleged victim of abuse, neglect, or
exploitation.
(b) A confirmed investigation finding by the commission
[department] may not be changed by the administrator of a facility,
a community center, a local mental health authority, or a local
intellectual and developmental disability authority.
SECTION 20. Sections 48.256(a), (b), and (c), Human
Resources Code, are amended to read as follows:
(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
commission [department] with information necessary to facilitate
the:
(1) identification of individuals receiving services
from providers; and
(2) [to facilitate] notification of providers by the
commission [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 the:
(1) identification by the commission [department] of
individuals receiving services from providers; and
(2) [to facilitate] notification of providers by the
commission [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 commission [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 commission [applicable health and human services agency] to
provide those services.
SECTION 21. Sections 48.258(a) and (b), Human Resources
Code, are amended to read as follows:
(a) The commission [health and human services agencies]
shall[, at the direction of the executive commissioner, jointly]
develop and implement a system to track reports and investigations
under this subchapter.
(b) To facilitate implementation of the system, the
commission [health and human services agencies] shall use
appropriate methods of measuring the number and outcome of reports
and investigations under this subchapter.
SECTION 22. Section 103.008(b), Human Resources Code, is
amended to read as follows:
(b) Any person may request an inspection of a facility by
notifying the commission in writing of an alleged violation of a
licensing requirement. The complaint shall be as detailed as
possible and signed by the complainant. The commission shall:
(1) if the complaint alleges abuse, neglect, or
exploitation, perform an [on-site] inspection as soon as feasible
but not [no] later than the 14th day [30 days] after the date the
commission receives [receiving] the complaint, unless after an
investigation the complaint is found to be frivolous;[. The
commission shall respond to a complainant in writing.]
(2) if the complaint does not allege abuse, neglect,
or exploitation, investigate the complaint not later than the 45th
day after the date the commission receives the complaint;
(3) respond to a complainant in writing; and
(4) [The commission shall also] receive and
investigate anonymous complaints.
SECTION 23. The following provisions are repealed:
(1) Section 252.121(b), Health and Safety Code;
(2) Section 252.126(b), Health and Safety Code;
(3) Section 48.252(a), Human Resources Code; and
(4) Section 48.254(b), Human Resources Code.
SECTION 24. (a) As soon as practicable after the effective
date of this Act, but not later than December 1, 2024, the
commissioner of the Department of Family and Protective Services
shall transfer any department funds and resources, including
information technology, documents, and personnel allocated for the
investigation of reports under Subchapter F, Chapter 48, Human
Resources Code, to the Health and Human Services Commission to
allow the commission to perform the functions described under
Subchapter F, Chapter 48, Human Resources Code, as amended by this
Act.
(b) Notwithstanding the effective date of this Act, the
Health and Human Services Commission is not required to comply with
changes in law made by this Act until the transfer required by
Subsection (a) of this section is completed.
SECTION 25. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 26. This Act takes effect September 1, 2023.