HBA-NLM H.B. 2170 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2170 By: Naishtat Human Services 3/18/1999 Introduced BACKGROUND AND PURPOSE Chapter 48, Human Resources Code, establishes the state's authority to protect elderly and disabled persons from abuse, neglect, and exploitation; however, these provisions have been revised several times since their original enactment. With the creation of the Department of Protective and Regulatory Services (department) by the 72nd Legislature, one of the most significant changes to the code related to the department's authority to conduct investigations of maltreatment of persons being served in Texas Department of Mental Health and Mental Retardation (TDMHMR) facilities. The department's responsibilities continued to evolve with changes in TDMHMR's methods of service delivery. The department has had to adjust its response to reports of abuse and neglect in the TDMHMR system. The purpose of this bill is to clarify the responsibilities and the duties of the department and TDMHMR, relating to abuse, neglect, and exploitation of elderly and disabled persons. This bill also addresses investigations at in-home and community-based services programs provided by TDMHMR and clarify the definitions of abuse, neglect, and exploitation used in TDMHMR facility investigations. H.B. 2170 requires the department to initiate a prompt and thorough investigation upon receipt of an allegation of abuse, neglect, or exploitation. This bill requires the department and TDMHMR to develop joint rules to facilitate investigations in state mental health and mental retardation facilities and to establish procedures to resolve disagreements. Accordingly, this bill requires the department and TDMHMR to jointly develop and implement a single system to track reports and investigations under this section and to use appropriate methods of measuring the number and outcomes of reports and investigations. This bill also repeals four sections of the Human Resources Code relating to TDMHMR's investigations and rules to make conforming changes to the new provisions of this bill. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Department of Protective and Regulatory Services (department) or investigating state agency in SECTION 10 (Section 48.101, Human Resources Code), and to the department in SECTION 12 (Section 48.102, Human Resources Code), and in SECTION 31 (Section 48.251, Human Resources Code), and to the department and the Texas Department of Mental Health and Mental Retardation in SECTION 33 (Section 48.255, Human Resources Code) and to each state agency other than TDMHMR that operates, licenses, certifies, or registers a facility in which elderly or disabled persons are located in SECTION 34 (Section 48.301, Human Resources Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 48, Human Resources Code, as follows: CHAPTER 48. New title: INVESTIGATIONS AND PROTECTIVE SERVICES FOR ELDERLY AND DISABLED PERSONS SECTION 2. Amends Sections 48.001 and 48.002, Human Resources Code, as follows: Sec. 48.001. PURPOSE. Makes a nonsubstantive change. Sec. 48.002. DEFINITIONS. Provides an exception under Section 48.251, Human Resources Code. Includes the definition of "volunteer" in the list of defined terms. Applies the definitions of "abuse," "neglect," and "exploitation" to an investigation of abuse, neglect, or exploitation in a facility subject to Subchapter F, Human Resources Code. Makes nonsubstantive changes. SECTION 3. Amends Section 48.085, Human Resources Code, to transfer this section to Subchapter A, Chapter 48, Human Resources Code, redesignated as Section 48.003, to make a conforming change. SECTION 4. Amends Subchapter B, Chapter 48, Human Resources Code, as follows: SUBCHAPTER B. New title: REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION: IMMUNITIES SECTION 5. Amends Section 48.036, Human Resources Code, to transfer this section to Subchapter B, Chapter 48, Human Resources Code, redesignated as Section 48.051, as follows: Sec. 48.051. REPORT. Provides an exception under Subsection (b), which requires a person who has cause to believe that an elderly or disabled person has been abused, neglected, or exploited in a certain facility, to report the information to the state agency that operates, licenses, certifies, or registers the facility for investigation by that agency. Specifies procedures for reporting such information. Deletes existing text of Subsection (b) and redesignates the text of Subsection (b) to a new Subsection (d). Makes conforming and nonsubstantive changes. SECTION 6. Amends Section 48.0361, Human Resources Code, to transfer this section to Subchapter B, Chapter 48, Human Resources Code, redesignated as Section 48.052, to make a conforming change. SECTION 7. Amends Section 48.0362, Human Resources Code, to transfer this section to Subchapter B, Chapter 48, Human Resources Code, redesignated as Section 48.053, to make a conforming change. SECTION 8. Amends Section 48.039, Human Resources Code, to transfer this section to Subchapter B, Chapter 48, Human Resources Code, redesignated as Section 48.054, as follows: Sec. 48.054. IMMUNITY. Includes a provision in this section to provide that a person who reports the person's own abuse, neglect, or exploitation of another or who acts in bad faith or with malicious purpose is not immune from civil or criminal liability. Deletes a definition of "volunteer." SECTION 9. Amends Subchapter C, Chapter 48, Human Resources Code, as follows: SUBCHAPTER C. New title: CONFIDENTIALITY SECTION 10. Amends Section 48.101, Human Resources Code, to transfer this section to Subchapter C, Chapter 48, Human Resources Code, to modify the Department of Protective and Regulatory Services' (department) or investigating state agency's rulemaking authority to authorize the department or investigating state agency to release information to whom the department has provided protective services. SECTION 11. Amends Section 48.102, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.207, to make a conforming change. SECTION 12. Amends Subchapter C, Human Resources Code, by adding a new Section 48.102, as follows: Sec. 48.102. REPORTS OF INVESTIGATIONS IN SCHOOLS. Requires the department to send a written report of the department's investigation of alleged abuse, neglect, or exploitation of a disabled adult at a school to the Texas Education Agency or other specified entity. Requires the department, on request, to provide a copy of the report to the person who is alleged to have suffered the abuse, neglect, or exploitation, and to other certain persons. Requires the report to be edited to protect the identity of the person who made the report. Requires the department to adopt rules necessary to implement this section. SECTION 13. Amends Subchapter D, Chapter 48, Human Resources Code, as follows: SUBCHAPTER D. New title: INVESTIGATIONS BY ALL AGENCIES SECTION 14. Amends Section 48.037, Human Resources Code, to transfer this section to Subchapter D, Chapter 48, Human Resources Code, redesignated as Section 48.151, as follows: Sec. 48.151. ACTION ON REPORT. Requires the department to initiate a prompt and thorough investigation upon receipt of an allegation of abuse, neglect, or exploitation under Section 48.051, Human Resources Code, in the manner described by this section. Requires the department to prepare and keep on file a report of each investigation conducted by the department. Deletes references to Subchapter E and makes conforming changes. SECTION 15. Amends Subchapter D, Chapter 48, Human Resources Code, by adding Sections 48.152 and 48.153, as follows: Sec. 48.152. INVESTIGATION. Requires a department or a state agency investigation to include an interview with the elderly or disabled person, and with other certain persons if appropriate. Specifies interview procedures. Sec. 48.153. ACCESS TO INVESTIGATION. Authorizes the probate court or the county court to enter the residence of the elderly or disabled person for investigative purposes. Requires a peace officer to accompany and assist the person making a court-ordered entry under this section. SECTION 16. Amends Section 48.0385, Human Resources Code, to transfer this section to Subchapter D, Chapter 48, Human Resources Code, redesignated as Section 48.154, as follows: Sec. 48.154. ACCESS TO RECORDS OR DOCUMENTS. Exempts the department from payment of a fee to obtain a medical record from a hospital or health care provider. Redesignates existing Subsections (b)-(e) to Subsections (c)-(f). Makes conforming changes. SECTION 17. Amends Section 48.103, Human Resources Code, to transfer this section to Subchapter D, Chapter 48, Human Resources Code, redesignated as Section 48.155, to make a conforming change. SECTION 18. Amends Section 48.057, Human Resources Code, to redesignate this section to Section 48.156, Human Resources Code. SECTION 19. Amends Subchapter D, Chapter 48, Human Resources Code, by adding Section 48.157, as follows: Sec. 48.157. REPORT TO LAW ENFORCEMENT AGENCY. Requires a copy of an investigation described by this section to be submitted to the appropriate law enforcement agency. SECTION 20. Amends Subchapter E, Chapter 48, Human Resources Code, as follows: SUBCHAPTER E. New title: PROVISION OF SERVICES; GUARDIANSHIP SERVICES; EMERGENCY PROTECTION SECTION 21. Amends Subchapter E, Chapter 48, Human Resources Code, by adding Sections 48.201 and 48.202, as follows: Sec. 48.201. APPLICATION OF SUBCHAPTER. Provides that this subchapter does not apply to a TDMHMR investigation under Subchapter F. Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY. Requires the department or state agency to assess the need and availability of services for elderly or disabled persons and other pertinent data. SECTION 22. Amends Section 48.059, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.203, to make a conforming change. SECTION 23. Amends Section 48.056, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.204, to make a conforming change. SECTION 24. Amends Section 48.021, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.205, to prescribe the responsibilities of this chapter, rather than this Act. Makes a conforming change. SECTION 25. Amends Section 48.058, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.206, to make a conforming change. SECTION 26. Amends Section 48.061, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.208, to make a conforming change. SECTION 27. Amends Section 48.0215, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.209, to make a conforming change. SECTION 28. Amends Section 48.040, Human Resources Code, to transfer this section to Subchapter E, Chapter 48, Human Resources Code, redesignated as Section 48.210, to make a conforming change. SECTION 29. Amends Subchapter E, Chapter 48, Human Resources Code, by adding Section 48.211, to require a written notification of the findings of an investigation to be sent to the court to which the guardian is accountable. SECTION 30. Amends Subchapter F, Chapter 48, Human Resources Code, as follows: SUBCHAPTER F. New title: INVESTIGATIONS IN TDMHMR FACILITIES, COMMUNITY CENTERS, AND MHMR AUTHORITIES SECTION 31. Amends Subchapter F, Chapter 48, Human Resources Code, by adding Section 48.251, to require the department, by rule, to adopt definitions of "abuse," "neglect," and "exploitation" to govern an investigation under this chapter. SECTION 32. Amends Section 48.081, Human Resources Code, to transfer this section to Subchapter F, Chapter 48, Human Resources Code, redesignated as Section 48.252, as follows: Sec. 48.252. INVESTIGATION OF REPORTS IN MHMR FACILITIES AND IN COMMUNITY CENTERS. Includes in the provisions of this section persons with disabilities receiving services in or from a community center, a local mental health authority, or a local mental retardation authority or through a program providing services to those persons by contract with a community center, a local mental health authority, or a local mental retardation authority. Provides that the terms "local mental health authority" and "local mental retardation authority" have the meaning assigned by Section 531.002, Health and Safety Code. Deletes existing requirements of the department and of the TDMHMR to develop rules, receive and investigate a report, forward copies of report and investigation findings, establish procedures to resolve disagreements, and other specified requirements of the department. SECTION 33. Amends Subchapter F, Chapter 48, Human Resources Code, by adding Sections 48.253, 48.254, 48.255, and 48.256, as follows: Sec. 48.253. ACTION ON REPORT. Requires the department to initiate a prompt and thorough investigation upon receipt of a report of alleged abuse, neglect, or exploitation under this subchapter. Sec. 48.254. FORWARDING OF COMPLETED INVESTIGATION REPORT. Requires the department to forward a copy of any report relating to the department's investigation and a copy of the department's investigation findings and report to certain entities. Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER. Requires the department and TDMHMR to develop joint rules to facilitate investigations in state mental health and mental retardation facilities and to establish procedures to resolve disagreements. Prohibits certain persons from changing confirmed investigation findings by the department. Requires the department to provide by rule an appeals process and to assign priorities to an investigation conducted by the department in this section. Sec. 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND INVESTIGATIONS. Requires the department and TDMHMR to jointly develop and implement a single system to track reports and investigations under this section and to use appropriate methods of measuring the number and outcomes of reports and investigations. SECTION 34. Amends Chapter 48, Human Resources Code, by adding Subchapter G, as follows: SUBCHAPTER G. INVESTIGATIONS IN CERTAIN FACILITIES Sec. 48.301. INVESTIGATION OF REPORTS IN OTHER STATE FACILITIES. Requires the department to refer a report described by this section to the appropriate agency. Requires the department to make a thorough investigation upon receipt of a report by a state agency of alleged abuse, neglect, or exploitation in a facility operated, licensed, certified, or registered by the agency. Requires certain state agencies other than TDMHMR to adopt rules relating to the investigation and resolution of reports received under this section. Requires the state agency to prepare and keep on file a complete written report of each investigation and to refer complaints relating to an investigation to its governing board or other designated entity. SECTION 35. Amends Section 48.022, Human Resources Code, to transfer this section to Subchapter G, Chapter 48, Human Resources Code, redesignated as Section 48.303, to delete the requirement for each agency to adopt the memorandum of understanding and all revisions to the memorandum described in this section. Makes a conforming change. SECTION 36. Amends Section 48.084, Human Resources Code, to transfer this section to Subchapter G, Chapter 48, Human Resources Code, redesignated as Section 48.304, to make a conforming change. SECTION 37. Repealer: _Section 48.038 (Implementation of Investigation), Human Resources Code; _Section 48.042 (Rules Concerning Facilities of Texas Department of Mental Health and Mental Retardation), Human Resources Code; _Section 48.082 (Investigation of Reports in Other State Facilities), Human Resources Code; and _Section 48.083 (Rules), Human Resources Code. SECTION 38. Effective date: September 1, 1999. SECTION 39. Emergency clause.