By: Noble H.B. No. 4696
A BILL TO BE ENTITLED
AN ACT
relating to transferring certain investigations of abuse, neglect,
and exploitation to the Health and Human Services Commission and
the on-site investigation and survey of certain providers by the
Health and Human Services Commission.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 142.009 (j), Health and Safety Code, is
amended to read as follows:
(j) Except as provided by Subsections (h) and (l), an
on-site survey must be conducted within 36 [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 2. 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 3. Section 253.001(4), Health and Safety Code, is
amended to read as follows:
(4) "Facility" means:
(A) a facility:
(i) licensed by the Health and Human
Services Commission [department]; or
(ii) licensed under Chapter 252;
(B) an adult foster care provider that contracts
with the Health and Human Services Commission [department];
(C) a home and community support services agency
licensed by the Health and Human Services Commission [department]
under Chapter 142; [or]
(D) a prescribed pediatric extended care center
licensed under Chapter 248A; or
(E) a residential child-care operation regulated
under 26. T.A.C. Chapter 748 or 749.
SECTION 4. Section 260A.002(a-1), Health and Safety Code,
is amended 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 Health and Human Services
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.
SECTION 5. Section 260A.007, Health and Safety Code, is
amended 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.
(o) The department must make an unannounced visit to the
facility when conducting an investigation of abuse or neglect.
SECTION 6. Section 48.251(a)(3), Human Resources Code, is
amended to read as follows:
(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 operation regulated
under 26 T.A.C. Chapter 748 or 749.
SECTION 7. Sections 48.252(a), (b), and (c), Human
Resources Code, are amended to read as follows:
(a) The commission [department] shall receive and, except
as provided by Subsection (b), shall investigate under this
subchapter reports of the abuse, neglect, or exploitation of an
individual receiving services if the person alleged or suspected to
have committed the abuse, neglect, or exploitation is a provider.
(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 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:
(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 a residential child-care operation regulated under 26
T.A.C. Chapter 748 or 749.
SECTION 8. 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 9. Sections 48.254(a) and (b), 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].
(b) The commission [department] shall redact from an
initial intake report and from the copy of the completed provider
investigation report any identifying information contained in the
report relating to the person who reported the alleged or suspected
abuse, neglect, or exploitation under this subchapter [Section
48.051].
SECTION 10. 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 11. Section 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 12. 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 13. 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
perform an [on-site] inspection as soon as feasible but no later
than 14 [30] days after receiving the complaint if the complaint is
related to abuse, neglect, or exploitation, unless after an
investigation the complaint is found to be frivolous. If the
complaint does not allege abuse, neglect, or exploitation, the
commission shall investigate within 45 days after receiving the
complaint. The commission shall respond to a complainant in
writing. The commission shall also receive and investigate
anonymous complaints.
SECTION 14. (a) As soon as practicable after the effective
date of this Act, but not later than December 1, 2023, 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 15. 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 16. This Act takes effect September 1, 2023.