Texas 2023 - 88th Regular

Texas House Bill HB4696 Compare Versions

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11 H.B. No. 4696
22
33
44 AN ACT
55 relating to the reporting and investigation of certain allegations
66 of abuse, neglect, and exploitation, the making and investigation
77 of complaints alleging violations of certain health facility
88 licensing requirements, and the content of the employee misconduct
99 registry.
1010 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1111 SECTION 1. Section 261.005, Family Code, is amended to read
1212 as follows:
1313 Sec. 261.005. REFERENCE TO EXECUTIVE COMMISSIONER OR
1414 COMMISSION. Unless otherwise provided by a provision of this
1515 chapter, in [In] this chapter:
1616 (1) a reference to the executive commissioner or the
1717 executive commissioner of the Health and Human Services Commission
1818 means the commissioner of the department; and
1919 (2) a reference to the Health and Human Services
2020 Commission means the department.
2121 SECTION 2. Section 261.105(c-1), Family Code, is amended to
2222 read as follows:
2323 (c-1) Notwithstanding Subsections (b) and (c), if a report
2424 under this section relates to a child with an intellectual
2525 disability receiving services in a state supported living center as
2626 defined by Section 531.002, Health and Safety Code, or the ICF-IID
2727 component of the Rio Grande State Center, the department shall
2828 immediately notify the commission and the commission shall proceed
2929 with the investigation of the report as provided by Section
3030 261.404. Notwithstanding Section 261.005, in this subsection,
3131 "commission" means the Health and Human Services Commission.
3232 SECTION 3. Section 261.404, Family Code, is amended by
3333 amending Subsections (a), (a-1), (a-2), (a-3), (b), (c), and (d)
3434 and adding Subsection (a-4) to read as follows:
3535 (a) Notwithstanding Section 261.005, in this section:
3636 (1) "Commission" means the Health and Human Services
3737 Commission.
3838 (2) "Executive commissioner" means the executive
3939 commissioner of the Health and Human Services Commission.
4040 (a-1) The commission [department] shall investigate a
4141 report of abuse, neglect, or exploitation of a child receiving
4242 services from a provider, as those terms are defined by Section
4343 48.251, Human Resources Code, or as otherwise defined by rule. The
4444 commission [department] shall also investigate, under Subchapter
4545 F, Chapter 48, Human Resources Code, a report of abuse, neglect, or
4646 exploitation of a child receiving services from an officer,
4747 employee, agent, contractor, or subcontractor of a home and
4848 community support services agency licensed under Chapter 142,
4949 Health and Safety Code, if the officer, employee, agent,
5050 contractor, or subcontractor is or may be the person alleged to have
5151 committed the abuse, neglect, or exploitation.
5252 (a-2) [(a-1)] For an investigation of a child living in a
5353 residence owned, operated, or controlled by a provider of services
5454 under the home and community-based services waiver program
5555 described by Section 534.001(11)(B), Government Code, the
5656 department, in accordance with Subchapter E, Chapter 48, Human
5757 Resources Code, may provide emergency protective services
5858 necessary to immediately protect the child from serious physical
5959 harm or death and, if necessary, obtain an emergency order for
6060 protective services under Section 48.208, Human Resources Code.
6161 (a-3) [(a-2)] For an investigation of a child living in a
6262 residence owned, operated, or controlled by a provider of services
6363 under the home and community-based services waiver program
6464 described by Section 534.001(11)(B), Government Code, regardless
6565 of whether the child is receiving services under that waiver
6666 program from the provider, the department shall provide protective
6767 services to the child in accordance with Subchapter E, Chapter 48,
6868 Human Resources Code.
6969 (a-4) [(a-3)] For purposes of this section, Subchapters E
7070 and F, Chapter 48, Human Resources Code, apply to an investigation
7171 of a child and to the provision of protective services to that child
7272 in the same manner those subchapters apply to an investigation of an
7373 elderly person or person with a disability and the provision of
7474 protective services to that person.
7575 (b) The commission [department] shall investigate a [the]
7676 report under this section under rules developed by the executive
7777 commissioner.
7878 (c) If a report under this section relates to a child with an
7979 intellectual disability receiving services in a state supported
8080 living center or the ICF-IID component of the Rio Grande State
8181 Center, the commission [department] shall, within 24 hours [one
8282 hour] of receiving the report, notify the facility in which the
8383 child is receiving services of the allegations in the report.
8484 (d) If, during the course of the commission's [department's]
8585 investigation of reported abuse, neglect, or exploitation, a
8686 caseworker of the commission [department] or the caseworker's
8787 supervisor has cause to believe that a child with an intellectual
8888 disability described by Subsection (c) has been abused, neglected,
8989 or exploited by another person in a manner that constitutes a
9090 criminal offense under any law, including Section 22.04, Penal
9191 Code, the caseworker shall immediately notify the commission's
9292 [Health and Human Services Commission's] office of inspector
9393 general and promptly provide the commission's office of inspector
9494 general with a copy of the commission's [department's]
9595 investigation report.
9696 SECTION 4. Section 142.009(j), Health and Safety Code, is
9797 amended to read as follows:
9898 (j) Except as provided by Subsections (h) and (l), a [an
9999 on-site] survey may [must] be conducted within 18 months after a
100100 survey for an initial license. After that time, an on-site survey
101101 must be conducted at least every 36 months.
102102 SECTION 5. Section 142.018(b), Health and Safety Code, is
103103 amended to read as follows:
104104 (b) A home and community support services agency that has
105105 cause to believe that a person receiving services from the agency
106106 has been abused, exploited, or neglected by an employee of the
107107 agency shall report the information to[:
108108 [(1)] the commission [department; and
109109 [(2) the Department of Family and Protective Services
110110 or other appropriate state agency as required by Section 48.051,
111111 Human Resources Code].
112112 SECTION 6. Section 252.039, Health and Safety Code, is
113113 amended to read as follows:
114114 Sec. 252.039. POSTING. Each facility shall prominently and
115115 conspicuously post for display in a public area of the facility that
116116 is readily available to residents, employees, and visitors:
117117 (1) the license issued under this chapter;
118118 (2) a sign prescribed by the commission [department]
119119 that specifies complaint procedures established under this chapter
120120 or rules adopted under this chapter and that specifies how
121121 complaints may be registered with the commission [department];
122122 (3) a notice in a form prescribed by the commission
123123 [department] stating that inspection and related reports are
124124 available at the facility for public inspection and providing the
125125 commission's [department's] toll-free telephone number that may be
126126 used to obtain information concerning the facility;
127127 (4) a concise summary of the most recent inspection
128128 report relating to the facility;
129129 (5) a notice providing instructions for reporting an
130130 allegation of abuse, neglect, or exploitation to the commission
131131 [Department of Family and Protective Services]; and
132132 (6) a notice that employees, other staff, residents,
133133 volunteers, and family members and guardians of residents are
134134 protected from discrimination or retaliation as provided by
135135 Sections 252.132 and 252.133.
136136 SECTION 7. Section 252.121(a), Health and Safety Code, is
137137 amended to read as follows:
138138 (a) A person, including an owner or employee of a facility,
139139 who has cause to believe that a resident is being or has been
140140 subjected to abuse, neglect, or exploitation shall report the
141141 suspected abuse, neglect, or exploitation to the commission
142142 [Department of Family and Protective Services, as required by
143143 Chapter 48, Human Resources Code, or Chapter 261, Family Code, as
144144 appropriate]. The commission [Department of Family and Protective
145145 Services] shall investigate the allegation of abuse, neglect, or
146146 exploitation in the manner prescribed by the commission [provided
147147 by Chapter 48, Human Resources Code, or Section 261.404, Family
148148 Code, as applicable].
149149 SECTION 8. Section 252.125, Health and Safety Code, is
150150 amended to read as follows:
151151 Sec. 252.125. IMMEDIATE REMOVAL TO PROTECT RESIDENT.
152152 Before the completion of the investigation by the commission
153153 [Department of Family and Protective Services], the commission
154154 [department] shall file a petition for temporary care and
155155 protection of a resident if the commission [department]
156156 determines[, based on information provided to the department by the
157157 Department of Family and Protective Services,] that immediate
158158 removal is necessary to protect the resident from further abuse,
159159 neglect, or exploitation.
160160 SECTION 9. Sections 253.001(1) and (4), Health and Safety
161161 Code, are amended to read as follows:
162162 (1) "Commission" means the Health and Human Services
163163 Commission ["Commissioner" means the commissioner of aging and
164164 disability services].
165165 (4) "Facility" means:
166166 (A) a nursing facility[:
167167 [(i)] licensed by the commission under
168168 Chapter 242 [department]; [or]
169169 (B) an intermediate care facility for
170170 individuals with an intellectual disability [(ii)] licensed by the
171171 commission under Chapter 252;
172172 (C) [(B)] an adult foster care provider that
173173 contracts with the commission [department];
174174 (D) [(C)] a home and community support services
175175 agency licensed by the commission [department] under Chapter 142;
176176 [or]
177177 (E) [(D)] a prescribed pediatric extended care
178178 center licensed by the commission under Chapter 248A;
179179 (F) an assisted living facility licensed by the
180180 commission under Chapter 247;
181181 (G) a day activity and health services facility
182182 licensed by the commission under Chapter 103, Human Resources Code;
183183 (H) a residential child-care facility as defined
184184 by Section 42.002, Human Resources Code, at which an elderly person
185185 or an adult with a disability resides or is in the facility's care;
186186 (I) a provider who provides home and
187187 community-based services under the home and community-based
188188 services (HCS) waiver program or the Texas home living (TxHmL)
189189 waiver program; or
190190 (J) a facility that is exempt from licensure
191191 under Section 252.003.
192192 SECTION 10. Section 260A.001, Health and Safety Code, is
193193 amended by adding Subdivision (1-a) to read as follows:
194194 (1-a) "Commission" means the Health and Human Services
195195 Commission.
196196 SECTION 11. Section 260A.002, Health and Safety Code, is
197197 amended by amending Subsections (a-1) and (c) and adding Subsection
198198 (d) to read as follows:
199199 (a-1) Notwithstanding any other provision of this chapter,
200200 a report made under this section that a provider is or may be
201201 alleged to have committed abuse, neglect, or exploitation of a
202202 resident of a facility other than a prescribed pediatric extended
203203 care center shall be investigated by the commission [Department of
204204 Family and Protective Services] in accordance with Subchapter F,
205205 Chapter 48, Human Resources Code, and this chapter does not apply to
206206 that investigation. In this subsection, "facility" and "provider"
207207 have the meanings assigned by Section 48.251, Human Resources Code.
208208 (c) A person shall make an oral or electronic report
209209 immediately on learning of the abuse, neglect, or exploitation [and
210210 shall make a written report to the department not later than the
211211 fifth day after the oral report is made].
212212 (d) A facility or provider shall submit a provider
213213 investigation report to the commission not later than the fifth day
214214 after the date the facility or provider makes the oral or electronic
215215 report under Subsection (c).
216216 SECTION 12. Section 260A.007, Health and Safety Code, is
217217 amended by amending Subsection (e) and adding Subsection (e-1) to
218218 read as follows:
219219 (e) In investigating the report of abuse, neglect,
220220 exploitation, or other complaint, the investigator for the
221221 commission [department] shall:
222222 (1) conduct [make] an unannounced investigation
223223 [visit to the facility] to determine the nature and cause of the
224224 alleged abuse, neglect, or exploitation of the resident;
225225 (2) interview each available witness, including the
226226 resident who suffered the alleged abuse, neglect, or exploitation
227227 if the resident is able to communicate or another resident or other
228228 witness identified by any source as having personal knowledge
229229 relevant to the report of abuse, neglect, exploitation, or other
230230 complaint;
231231 (3) [personally] inspect any physical circumstance
232232 that is relevant and material to the report of abuse, neglect,
233233 exploitation, or other complaint and that may be objectively
234234 observed;
235235 (4) if an on-site investigation is conducted, make a
236236 photographic record of any injury to a resident, subject to
237237 Subsection (n);
238238 (5) write an investigation report that includes:
239239 (A) the investigator's personal observations;
240240 (B) a review of relevant documents and records;
241241 (C) a summary of each witness statement,
242242 including the statement of the resident that suffered the alleged
243243 abuse, neglect, or exploitation and any other resident interviewed
244244 in the investigation; and
245245 (D) a statement of the factual basis for the
246246 findings for each incident or problem alleged in the report or other
247247 allegation; and
248248 (6) for a resident of an institution or assisted
249249 living facility, inspect any court order appointing a guardian of
250250 the resident who was the subject of the alleged abuse, neglect, or
251251 exploitation that is maintained in the resident's medical records
252252 under Section 242.019 or 247.070.
253253 (e-1) In addition to the requirements under Subsection (e),
254254 the commission shall make an unannounced visit to a facility to
255255 conduct an investigation of abuse or neglect.
256256 SECTION 13. Section 48.0021, Human Resources Code, is
257257 amended to read as follows:
258258 Sec. 48.0021. REFERENCE TO COMMISSION OR EXECUTIVE
259259 COMMISSIONER. Unless otherwise provided by a provision of this
260260 chapter, in [In] this chapter:
261261 (1) a reference to the Health and Human Services
262262 Commission means the Department of Family and Protective Services;
263263 and
264264 (2) a reference to the executive commissioner means
265265 the commissioner of the Department of Family and Protective
266266 Services.
267267 SECTION 14. Section 48.051, Human Resources Code, is
268268 amended by adding Subsection (b-1) and amending Subsection (c) to
269269 read as follows:
270270 (b-1) This subsection applies only to a provider under the
271271 home and community-based services (HCS) waiver program or the Texas
272272 home living (TxHmL) waiver program, an intermediate care facility
273273 licensed under Chapter 252, Health and Safety Code, a state
274274 supported living center as defined by Section 531.002, Health and
275275 Safety Code, or a home and community support services agency
276276 licensed under Chapter 142, Health and Safety Code. Except as
277277 provided by Subsections (a) and (b), a person, including an
278278 officer, employee, agent, contractor, or subcontractor of a
279279 facility or provider subject to this subsection, having cause to
280280 believe that an individual receiving services from the facility or
281281 provider is in the state of abuse, neglect, or exploitation shall
282282 immediately report to the commission the information required by
283283 Subsection (d). Notwithstanding Section 48.0021, in this
284284 subsection "commission" means the Health and Human Services
285285 Commission.
286286 (c) The duty imposed by Subsections (a), (b), and (b-1)
287287 [(b)] applies without exception to a person whose knowledge
288288 concerning possible abuse, neglect, or exploitation is obtained
289289 during the scope of the person's employment or whose professional
290290 communications are generally confidential, including an attorney,
291291 clergy member, medical practitioner, social worker, employee or
292292 member of a board that licenses or certifies a professional, and
293293 mental health professional.
294294 SECTION 15. Section 48.251(a), Human Resources Code, is
295295 amended by adding Subdivisions (1-a) and (2-a) and amending
296296 Subdivision (3) to read as follows:
297297 (1-a) "Commission" means the Health and Human Services
298298 Commission, notwithstanding Section 48.0021.
299299 (2-a) "Executive commissioner" means the executive
300300 commissioner of the Health and Human Services Commission,
301301 notwithstanding Section 48.0021.
302302 (3) "Facility" means:
303303 (A) a facility listed in Section 532.001(b) or
304304 532A.001(b), Health and Safety Code, [including community services
305305 operated by the Department of State Health Services or Department
306306 of Aging and Disability Services,] as described by those sections,
307307 or a person contracting with a health and human services agency to
308308 provide inpatient mental health services; [and]
309309 (B) a facility licensed under Chapter 252, Health
310310 and Safety Code;
311311 (C) a residential child-care facility as defined
312312 by Section 42.002 at which an elderly person or an adult with a
313313 disability resides or is in the facility's care; and
314314 (D) a home and community support services agency
315315 licensed under Chapter 142, Health and Safety Code.
316316 SECTION 16. Sections 48.252(b) and (c), Human Resources
317317 Code, are amended to read as follows:
318318 (b) The department may not investigate under this
319319 subchapter reports of abuse, neglect, or exploitation alleged or
320320 suspected to have been committed by a provider that is operated,
321321 licensed, certified, or registered by a state agency that has
322322 authority under this chapter or other law to investigate reports of
323323 abuse, neglect, or exploitation of an individual by the provider.
324324 The department shall forward any report of abuse, neglect, or
325325 exploitation alleged or suspected to have been committed by a
326326 provider described by this subsection to the commission
327327 [appropriate state agency] for investigation.
328328 (c) The commission [department] shall receive and
329329 investigate under this subchapter reports of abuse, neglect, or
330330 exploitation of:
331331 (1) an individual who lives in a residence that is
332332 owned, operated, or controlled by a provider who provides home and
333333 community-based services under the home and community-based
334334 services waiver program described by Section 534.001(11)(B),
335335 Government Code, regardless of whether the individual is receiving
336336 services under that waiver program from the provider; and
337337 (2) an elderly person or an adult with a disability who
338338 lives in or is in the care of a residential child-care facility as
339339 defined by Section 42.002.
340340 SECTION 17. Sections 48.253(a), (b), and (c), Human
341341 Resources Code, are amended to read as follows:
342342 (a) On receipt by the commission [department] of a report of
343343 alleged abuse, neglect, or exploitation under this subchapter, the
344344 commission [department] shall initiate a prompt and thorough
345345 investigation as needed to evaluate the accuracy of the report and
346346 to assess the need for emergency protective services, unless the
347347 commission [department], in accordance with rules adopted under
348348 this subchapter, determines that the report:
349349 (1) is frivolous or patently without a factual basis;
350350 or
351351 (2) does not concern abuse, neglect, or exploitation.
352352 (b) After receiving a report that alleges that a provider is
353353 or may be the person who committed the alleged abuse, neglect, or
354354 exploitation, the commission [department] shall notify the
355355 provider [and the appropriate health and human services agency] in
356356 accordance with rules adopted by the executive commissioner.
357357 (c) The provider identified under Subsection (b) shall:
358358 (1) cooperate completely with an investigation
359359 conducted under this subchapter; and
360360 (2) provide the commission [department] complete
361361 access during an investigation to:
362362 (A) all sites owned, operated, or controlled by
363363 the provider; and
364364 (B) clients and client records.
365365 SECTION 18. Sections 48.254(a) and (c), Human Resources
366366 Code, are amended to read as follows:
367367 (a) The executive commissioner by rule shall establish
368368 procedures for the commission [department] to use to forward a copy
369369 of the initial intake report and a copy of the completed provider
370370 investigation report relating to alleged or suspected abuse,
371371 neglect, or exploitation to the appropriate provider [and health
372372 and human services agency].
373373 (c) A provider that receives the findings of an [a
374374 completed] investigation from the commission report under
375375 Subsection (a) shall forward the findings [report] to the managed
376376 care organization with which the provider contracts for services
377377 for the alleged victim.
378378 SECTION 19. Sections 48.255(a) and (b), Human Resources
379379 Code, are amended to read as follows:
380380 (a) The executive commissioner shall adopt rules to:
381381 (1) prioritize investigations conducted under this
382382 subchapter with the primary criterion being whether there is a risk
383383 that a delay in the investigation will impede the collection of
384384 evidence in that investigation; and
385385 (2) [establish procedures for resolving disagreements
386386 between the department and health and human services agencies
387387 concerning the department's investigation findings; and
388388 [(3)] provide for an appeals process by the commission
389389 [department] for the alleged victim of abuse, neglect, or
390390 exploitation.
391391 (b) A confirmed investigation finding by the commission
392392 [department] may not be changed by the administrator of a facility,
393393 a community center, a local mental health authority, or a local
394394 intellectual and developmental disability authority.
395395 SECTION 20. Sections 48.256(a), (b), and (c), Human
396396 Resources Code, are amended to read as follows:
397397 (a) The executive commissioner shall adopt rules that
398398 prescribe the appropriate manner in which [health and human
399399 services agencies and] managed care organizations provide the
400400 commission [department] with information necessary to facilitate
401401 the:
402402 (1) identification of individuals receiving services
403403 from providers; and
404404 (2) [to facilitate] notification of providers by the
405405 commission [department].
406406 (b) The executive commissioner shall adopt rules requiring
407407 a provider to provide information [to the administering health and
408408 human services agency] necessary to facilitate the:
409409 (1) identification by the commission [department] of
410410 individuals receiving services from providers; and
411411 (2) [to facilitate] notification of providers by the
412412 commission [department].
413413 (c) A provider of home and community-based services under
414414 the home and community-based services waiver program described by
415415 Section 534.001(11)(B), Government Code, shall post in a
416416 conspicuous location inside any residence owned, operated, or
417417 controlled by the provider in which home and community-based waiver
418418 services are provided, a sign that states:
419419 (1) the name, address, and telephone number of the
420420 provider;
421421 (2) the effective date of the provider's contract with
422422 the commission [applicable health and human services agency] to
423423 provide home and community-based services; and
424424 (3) the name of the legal entity that contracted with
425425 the commission [applicable health and human services agency] to
426426 provide those services.
427427 SECTION 21. Sections 48.258(a) and (b), Human Resources
428428 Code, are amended to read as follows:
429429 (a) The commission [health and human services agencies]
430430 shall[, at the direction of the executive commissioner, jointly]
431431 develop and implement a system to track reports and investigations
432432 under this subchapter.
433433 (b) To facilitate implementation of the system, the
434434 commission [health and human services agencies] shall use
435435 appropriate methods of measuring the number and outcome of reports
436436 and investigations under this subchapter.
437437 SECTION 22. Section 103.008(b), Human Resources Code, is
438438 amended to read as follows:
439439 (b) Any person may request an inspection of a facility by
440440 notifying the commission in writing of an alleged violation of a
441441 licensing requirement. The complaint shall be as detailed as
442442 possible and signed by the complainant. The commission shall:
443443 (1) if the complaint alleges abuse, neglect, or
444444 exploitation, perform an [on-site] inspection as soon as feasible
445445 but not [no] later than the 14th day [30 days] after the date the
446446 commission receives [receiving] the complaint, unless after an
447447 investigation the complaint is found to be frivolous;[. The
448448 commission shall respond to a complainant in writing.]
449449 (2) if the complaint does not allege abuse, neglect,
450450 or exploitation, investigate the complaint not later than the 45th
451451 day after the date the commission receives the complaint;
452452 (3) respond to a complainant in writing; and
453453 (4) [The commission shall also] receive and
454454 investigate anonymous complaints.
455455 SECTION 23. The following provisions are repealed:
456456 (1) Section 252.121(b), Health and Safety Code;
457457 (2) Section 252.126(b), Health and Safety Code;
458458 (3) Section 48.252(a), Human Resources Code; and
459459 (4) Section 48.254(b), Human Resources Code.
460460 SECTION 24. (a) As soon as practicable after the effective
461461 date of this Act, but not later than December 1, 2024, the
462462 commissioner of the Department of Family and Protective Services
463463 shall transfer any department funds and resources, including
464464 information technology, documents, and personnel allocated for the
465465 investigation of reports under Subchapter F, Chapter 48, Human
466466 Resources Code, to the Health and Human Services Commission to
467467 allow the commission to perform the functions described under
468468 Subchapter F, Chapter 48, Human Resources Code, as amended by this
469469 Act.
470470 (b) Notwithstanding the effective date of this Act, the
471471 Health and Human Services Commission is not required to comply with
472472 changes in law made by this Act until the transfer required by
473473 Subsection (a) of this section is completed.
474474 SECTION 25. If before implementing any provision of this
475475 Act a state agency determines that a waiver or authorization from a
476476 federal agency is necessary for implementation of that provision,
477477 the agency affected by the provision shall request the waiver or
478478 authorization and may delay implementing that provision until the
479479 waiver or authorization is granted.
480480 SECTION 26. This Act takes effect September 1, 2023.
481481 ______________________________ ______________________________
482482 President of the Senate Speaker of the House
483483 I certify that H.B. No. 4696 was passed by the House on May 2,
484484 2023, by the following vote: Yeas 139, Nays 1, 1 present, not
485485 voting; and that the House concurred in Senate amendments to H.B.
486486 No. 4696 on May 26, 2023, by the following vote: Yeas 138, Nays 0,
487487 1 present, not voting.
488488 ______________________________
489489 Chief Clerk of the House
490490 I certify that H.B. No. 4696 was passed by the Senate, with
491491 amendments, on May 24, 2023, by the following vote: Yeas 30, Nays
492492 0.
493493 ______________________________
494494 Secretary of the Senate
495495 APPROVED: __________________
496496 Date
497497 __________________
498498 Governor