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AN ACT
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relating to the protection and care of individuals with mental |
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retardation and to certain legal protections for individuals with |
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disabilities; providing criminal penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 38.072, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 38.072. HEARSAY STATEMENT OF CERTAIN [CHILD] ABUSE |
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VICTIMS [VICTIM] |
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Sec. 1. This article applies to a proceeding in the |
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prosecution of an offense under any of the following provisions of |
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the Penal Code, if committed against a child 12 years of age or |
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younger or a person with a disability: |
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(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive |
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Offenses); |
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(2) Section 25.02 (Prohibited Sexual Conduct); or |
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(3) Section 43.25 (Sexual Performance by a Child). |
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Sec. 2. (a) This article applies only to statements that |
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describe the alleged offense that: |
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(1) were made by the child or person with a disability |
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against whom the offense was allegedly committed; and |
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(2) were made to the first person, 18 years of age or |
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older, other than the defendant, to whom the child or person with a |
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disability made a statement about the offense. |
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(b) A statement that meets the requirements of Subsection |
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(a) [of this article] is not inadmissible because of the hearsay |
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rule if: |
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(1) on or before the 14th day before the date the |
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proceeding begins, the party intending to offer the statement: |
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(A) notifies the adverse party of its intention |
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to do so; |
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(B) provides the adverse party with the name of |
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the witness through whom it intends to offer the statement; and |
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(C) provides the adverse party with a written |
|
summary of the statement; |
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(2) the trial court finds, in a hearing conducted |
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outside the presence of the jury, that the statement is reliable |
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based on the time, content, and circumstances of the statement; and |
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(3) the child or person with a disability testifies or |
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is available to testify at the proceeding in court or in any other |
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manner provided by law. |
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Sec. 3. In this article, "person with a disability" means a |
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person 13 years of age or older who because of age or physical or |
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mental disease, disability, or injury is substantially unable to |
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protect the person's self from harm or to provide food, shelter, or |
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medical care for the person's self. |
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SECTION 2. Chapter 29, Education Code, is amended by adding |
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Subchapter L to read as follows: |
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SUBCHAPTER L. SCHOOL DISTRICT PROGRAM FOR RESIDENTS OF FORENSIC |
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STATE SUPPORTED LIVING CENTER |
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Sec. 29.451. DEFINITIONS. In this subchapter, "alleged |
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offender resident," "interdisciplinary team," and "state supported |
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living center" have the meanings assigned by Section 555.001, |
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Health and Safety Code. |
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Sec. 29.452. APPLICABILITY. This subchapter applies only |
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to an alleged offender resident of the forensic state supported |
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living center established under Section 555.002, Health and Safety |
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Code. |
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Sec. 29.453. SCHOOL DISTRICT SERVICES. (a) A school |
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district shall provide educational services, including services |
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required under Subchapter A, to each alleged offender resident who |
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is under 22 years of age and otherwise eligible under Section 25.001 |
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to attend school in the district. The district shall provide |
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educational services to each alleged offender resident who is 21 |
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years of age on September 1 of the school year and otherwise |
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eligible to attend school in the district until the earlier of: |
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(1) the end of that school year; or |
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(2) the student's graduation from high school. |
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(b) The educational placement of an alleged offender |
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resident and the educational services to be provided by a school |
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district to the resident shall be determined by the resident's |
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admission, review, and dismissal committee consistent with federal |
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law and regulations regarding the placement of students with |
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disabilities in the least restrictive environment. The resident's |
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admission, review, and dismissal committee shall: |
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(1) inform the resident's interdisciplinary team of a |
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determination the committee makes in accordance with this |
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subsection; and |
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(2) consult, to the extent practicable, with the |
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resident's interdisciplinary team concerning such a determination. |
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Sec. 29.454. BEHAVIOR MANAGEMENT; BEHAVIOR SUPPORT |
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SPECIALISTS. (a) The discipline of an alleged offender resident |
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by a school district is subject to Sections 37.0021 and 37.004 and |
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to federal law governing the discipline of students with |
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disabilities. |
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(b) A school district in which alleged offender residents |
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are enrolled shall employ one or more behavior support specialists |
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to serve the residents while at school. A behavior support |
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specialist must: |
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(1) hold a baccalaureate degree; |
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(2) have training in providing to students positive |
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behavioral support and intervention, as determined by the |
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commissioner of education; and |
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(3) meet any other requirement jointly determined by |
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the commissioner of education and the commissioner of the |
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Department of Aging and Disability Services. |
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(c) A behavior support specialist shall conduct for each |
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alleged offender resident enrolled in the school district a |
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functional behavioral assessment that includes: |
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(1) data collection, through interviews with and |
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observation of the resident; |
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(2) data analysis; and |
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(3) development of an individualized school |
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behavioral intervention plan for the resident. |
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(d) Each behavior support specialist shall: |
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(1) ensure that each alleged offender resident |
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enrolled in the school district is provided behavior management |
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services under a school behavioral intervention plan based on the |
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resident's functional behavioral assessment, as described by |
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Subsection (c); |
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(2) communicate and coordinate with the resident's |
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interdisciplinary team to ensure that behavioral intervention |
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actions of the district and of the forensic state supported living |
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center do not conflict; |
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(3) in the case of a resident who regresses: |
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(A) ensure that necessary corrective action is |
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taken in the resident's individualized education program or school |
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behavioral intervention plan, as appropriate; and |
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(B) communicate with the resident's |
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interdisciplinary team concerning the regression and encourage the |
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team to aggressively address the regression; |
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(4) participate in the resident's admission, review, |
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and dismissal committee meetings in conjunction with: |
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(A) developing and implementing the resident's |
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school behavioral intervention plan; and |
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(B) determining the appropriate educational |
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placement for each resident, considering all available academic and |
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behavioral information; |
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(5) coordinate each resident's school behavioral |
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intervention plan with the resident's program of active treatment |
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provided by the forensic state supported living center to ensure |
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consistency of approach and response to the resident's identified |
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behaviors; |
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(6) provide training for school district staff and, as |
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appropriate, state supported living center staff in implementing |
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behavioral intervention plans for each resident; and |
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(7) remain involved with the resident during the |
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school day. |
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(e) Section 22.0511 applies to a behavior support |
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specialist employed under this section by a school district. |
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Sec. 29.455. MEMORANDUM OF UNDERSTANDING. (a) A school |
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district in which alleged offender residents are enrolled in school |
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and the forensic state supported living center shall enter into a |
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memorandum of understanding to: |
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(1) establish the duties and responsibilities of the |
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behavior support specialist to ensure the safety of all students |
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and teachers while educational services are provided to a resident |
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at a school in the district; and |
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(2) ensure the provision of appropriate facilities for |
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providing educational services and of necessary technological |
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equipment if a resident's admission, review, and dismissal |
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committee determines that the resident must receive educational |
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services at the forensic state supported living center. |
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(b) A memorandum of understanding under Subsection (a) |
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remains in effect until superseded by a subsequent memorandum of |
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understanding between the school district and the forensic state |
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supported living center or until otherwise rescinded. |
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Sec. 29.456. FAILURE OF SCHOOL DISTRICT AND CENTER TO |
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AGREE. (a) If a school district in which alleged offender |
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residents are enrolled in school and the forensic state supported |
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living center fail to agree on the services required for residents |
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or responsibility for those services, the district or center may |
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refer the issue in disagreement to the commissioner of education |
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and the commissioner of the Department of Aging and Disability |
|
Services. |
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(b) If the commissioner of education and the commissioner of |
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the Department of Aging and Disability Services are unable to bring |
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the school district and forensic state supported living center to |
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agreement, the commissioners shall jointly submit a written request |
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to the attorney general to appoint a neutral third party |
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knowledgeable in special education and mental retardation issues to |
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resolve each issue on which the district and the center disagree. |
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The decision of the neutral third party is final and may not be |
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appealed. The district and the center shall implement the decision |
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of the neutral third party. The commissioner of education or the |
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commissioner of the Department of Aging and Disability Services |
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shall ensure that the district and the center implement the |
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decision of the neutral third party. |
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Sec. 29.457. FUNDING. (a) In addition to other funding to |
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which a school district is entitled under this code, each district |
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in which alleged offender residents attend school is entitled to an |
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annual allotment of $5,100 for each resident in average daily |
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attendance or a different amount for any year provided by |
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appropriation. |
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(b) Not later than December 1 of each year, a school |
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district that receives an allotment under this section shall submit |
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a report accounting for the expenditure of funds received under |
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this section to the governor, the lieutenant governor, the speaker |
|
of the house of representatives, the chairs of the standing |
|
committees of the senate and house of representatives with primary |
|
jurisdiction regarding persons with mental retardation and public |
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education, and each member of the legislature whose district |
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contains any portion of the territory included in the school. |
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Sec. 29.458. RULES. The commissioner may adopt rules as |
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necessary to administer this subchapter. |
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SECTION 3. Section 54.031, Family Code, is amended to read |
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as follows: |
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Sec. 54.031. HEARSAY STATEMENT OF CERTAIN [CHILD] ABUSE |
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VICTIMS [VICTIM]. (a) This section applies to a hearing under |
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this title in which a child is alleged to be a delinquent child on |
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the basis of a violation of any of the following provisions of the |
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Penal Code, if a child 12 years of age or younger or a person with a |
|
disability is the alleged victim of the violation: |
|
(1) Chapter 21 (Sexual Offenses) or 22 (Assaultive |
|
Offenses); |
|
(2) Section 25.02 (Prohibited Sexual Conduct); or |
|
(3) Section 43.25 (Sexual Performance by a Child). |
|
(b) This section applies only to statements that describe |
|
the alleged violation that: |
|
(1) were made by the child or person with a disability |
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who is the alleged victim of the violation; and |
|
(2) were made to the first person, 18 years of age or |
|
older, to whom the child or person with a disability made a |
|
statement about the violation. |
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(c) A statement that meets the requirements of Subsection |
|
(b) [of this section] is not inadmissible because of the hearsay |
|
rule if: |
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(1) on or before the 14th day before the date the |
|
hearing begins, the party intending to offer the statement: |
|
(A) notifies each other party of its intention to |
|
do so; |
|
(B) provides each other party with the name of |
|
the witness through whom it intends to offer the statement; and |
|
(C) provides each other party with a written |
|
summary of the statement; |
|
(2) the juvenile court finds, in a hearing conducted |
|
outside the presence of the jury, that the statement is reliable |
|
based on the time, content, and circumstances of the statement; and |
|
(3) the child or person with a disability who is the |
|
alleged victim testifies or is available to testify at the hearing |
|
in court or in any other manner provided by law. |
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(d) In this section, "person with a disability" means a |
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person 13 years of age or older who because of age or physical or |
|
mental disease, disability, or injury is substantially unable to |
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protect the person's self from harm or to provide food, shelter, or |
|
medical care for the person's self. |
|
SECTION 4. Section 261.105, Family Code, is amended by |
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adding Subsection (c-1) to read as follows: |
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(c-1) Notwithstanding Subsections (b) and (c), if a report |
|
under this section relates to a child with mental retardation |
|
receiving services in a state supported living center as defined by |
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Section 531.002, Health and Safety Code, or the ICF-MR component of |
|
the Rio Grande State Center, the department shall proceed with the |
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investigation of the report as provided by Section 261.404. |
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SECTION 5. Subsection (b), Section 261.109, Family Code, is |
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amended to read as follows: |
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(b) An offense under this section is a Class A [B] |
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misdemeanor, except that the offense is a state jail felony if it is |
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shown on the trial of the offense that the child was a person with |
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mental retardation who resided in a state supported living center, |
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the ICF-MR component of the Rio Grande State Center, or a facility |
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licensed under Chapter 252, Health and Safety Code, and the actor |
|
knew that the child had suffered serious bodily injury as a result |
|
of the abuse or neglect. |
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SECTION 6. Subsection (b), Section 261.401, Family Code, is |
|
amended to read as follows: |
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(b) Except as provided by Section 261.404, a [A] state |
|
agency that operates, licenses, certifies, or registers a facility |
|
in which children are located or provides oversight of a program |
|
that serves children shall make a prompt, thorough investigation of |
|
a report that a child has been or may be abused, neglected, or |
|
exploited in the facility or program. The primary purpose of the |
|
investigation shall be the protection of the child. |
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SECTION 7. Section 261.404, Family Code, is amended to read |
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as follows: |
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Sec. 261.404. INVESTIGATIONS REGARDING CERTAIN CHILDREN |
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WITH MENTAL ILLNESS OR [IN FACILITIES UNDER DEPARTMENT OF MENTAL
|
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HEALTH AND] MENTAL RETARDATION. (a) The department shall |
|
investigate a report of abuse, neglect, or exploitation of a child |
|
receiving services: |
|
(1) in a facility operated by the [Texas] Department |
|
of Aging and Disability Services or a mental health facility |
|
operated by the Department of State [Mental] Health Services [and
|
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Mental Retardation]; |
|
(2) in or from a community center, a local mental |
|
health authority, or a local mental retardation authority; [or] |
|
(3) through a program providing services to that child |
|
by contract with a facility operated by the [Texas] Department of |
|
Aging and Disability Services, a mental health facility operated by |
|
the Department of State [Mental] Health Services [and Mental
|
|
Retardation], a community center, a local mental health authority, |
|
or a local mental retardation authority; |
|
(4) from a provider of home and community-based |
|
services who contracts with the Department of Aging and Disability |
|
Services; or |
|
(5) in a facility licensed under Chapter 252, Health |
|
and Safety Code. |
|
(b) The department shall investigate the report under rules |
|
developed by the executive commissioner of the Health and Human |
|
Services Commission with the advice and assistance of [jointly
|
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between] the department, [and] the [Texas] Department of Aging and |
|
Disability Services, and the Department of State [Mental] Health |
|
Services [and Mental Retardation]. |
|
(c) If a report under this section relates to a child with |
|
mental retardation receiving services in a state supported living |
|
center or the ICF-MR component of the Rio Grande State Center, the |
|
department shall, within one hour of receiving the report, notify |
|
the facility in which the child is receiving services of the |
|
allegations in the report. |
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(d) If during the course of the department's investigation |
|
of reported abuse, neglect, or exploitation a caseworker of the |
|
department or the caseworker's supervisor has cause to believe that |
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a child with mental retardation 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 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 department's investigation report. |
|
(e) The definitions of "abuse" and "neglect" prescribed by |
|
Section 261.001 do not apply to an investigation under this |
|
section. |
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(f) [(d)] In this section: |
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(1) [,] "Community [community] center," "local mental |
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health authority," [and] "local mental retardation authority," and |
|
"state supported living center" have the meanings assigned by |
|
Section 531.002, Health and Safety Code. |
|
(2) "Provider" has the meaning assigned by Section |
|
48.351, Human Resources Code. |
|
SECTION 8. Subchapter F, Chapter 411, Government Code, is |
|
amended by adding Section 411.1144 to read as follows: |
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Sec. 411.1144. ACCESS TO CRIMINAL HISTORY RECORD |
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INFORMATION: AGENCIES WITH EMPLOYEES OR VOLUNTEERS AT STATE |
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SUPPORTED LIVING CENTERS. (a) The Department of State Health |
|
Services and the Department of Aging and Disability Services are |
|
entitled to obtain from the department criminal history record |
|
information maintained by the department that relates to a person: |
|
(1) who is: |
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(A) an applicant for employment with the agency; |
|
(B) an employee of the agency; |
|
(C) a volunteer with the agency; or |
|
(D) an applicant for a volunteer position with |
|
the agency; and |
|
(2) who would be placed in direct contact with a |
|
resident or client of a state supported living center or the ICF-MR |
|
component of the Rio Grande State Center. |
|
(b) Criminal history record information obtained by an |
|
agency under Subsection (a) may not be released or disclosed to any |
|
person except: |
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(1) on court order; |
|
(2) with the consent of the person who is the subject |
|
of the criminal history record information; |
|
(3) for purposes of an administrative hearing held by |
|
the agency concerning the person who is the subject of the criminal |
|
history record information; or |
|
(4) as provided by Subsection (c). |
|
(c) An agency is not prohibited from releasing criminal |
|
history record information obtained under Subsection (a) or (d) to |
|
the person who is the subject of the criminal history record |
|
information. |
|
(d) Subject to Section 411.087, the Department of State |
|
Health Services and the Department of Aging and Disability Services |
|
are entitled to: |
|
(1) obtain through the Federal Bureau of Investigation |
|
criminal history record information maintained or indexed by that |
|
bureau that pertains to a person described by Subsection (a); and |
|
(2) obtain from any other criminal justice agency in |
|
this state criminal history record information maintained by that |
|
criminal justice agency that relates to a person described by |
|
Subsection (a). |
|
(e) This section does not prohibit an agency from obtaining |
|
and using criminal history record information as provided by other |
|
law. |
|
SECTION 9. Chapter 531, Government Code, is amended by |
|
adding Subchapter U to read as follows: |
|
SUBCHAPTER U. MORTALITY REVIEW FOR CERTAIN INDIVIDUALS WITH |
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DEVELOPMENTAL DISABILITIES |
|
Sec. 531.851. MORTALITY REVIEW. (a) The executive |
|
commissioner shall establish an independent mortality review |
|
system to review the death of a person with a developmental |
|
disability who, at the time of the person's death: |
|
(1) resided in or received services from: |
|
(A) an intermediate care facility for persons |
|
with mental retardation (ICF-MR) operated or licensed by the |
|
Department of Aging and Disability Services or a community center; |
|
or |
|
(B) the ICF-MR component of the Rio Grande State |
|
Center; or |
|
(2) received residential assistance through a Section |
|
1915(c) waiver program serving individuals who are eligible for |
|
ICF-MR services in a residence in which residential assistance is |
|
provided to three or more persons and in which the waiver program |
|
provider has a property interest. |
|
(b) A review under this subchapter must be conducted in |
|
addition to any review conducted by the facility in which the person |
|
resided or the facility, agency, or provider from which the person |
|
received services. A review under this subchapter must be |
|
conducted after any investigation of alleged or suspected abuse, |
|
neglect, or exploitation is completed. |
|
(c) The executive commissioner shall contract with a |
|
patient safety organization certified in accordance with 42 C.F.R. |
|
Part 3, as effective on January 19, 2009, to conduct independent |
|
mortality reviews required by this subchapter. The contract must |
|
require the patient safety organization to conduct an independent |
|
mortality review using a team consisting of: |
|
(1) a physician with expertise regarding the medical |
|
treatment of individuals with mental retardation; |
|
(2) a registered nurse with expertise regarding the |
|
medical treatment of individuals with mental retardation; |
|
(3) a clinician or other professional with expertise |
|
in the delivery of services and supports for individuals with |
|
mental retardation; and |
|
(4) any other appropriate person as provided by the |
|
executive commissioner. |
|
(d) The executive commissioner shall adopt rules regarding |
|
the manner in which the death of a person described by Subsection |
|
(a) must be reported to the patient safety organization by a |
|
facility or waiver program provider described by that subsection. |
|
(e) To ensure consistency across mortality review systems, |
|
a review under this section must collect information consistent |
|
with the information required to be collected by any other |
|
independent mortality review process established specifically for |
|
persons with mental retardation. |
|
Sec. 531.852. ACCESS TO INFORMATION. (a) A patient safety |
|
organization may request information and records regarding a |
|
deceased person as necessary to carry out the patient safety |
|
organization's duties. Records and information that may be |
|
requested under this section include: |
|
(1) medical, dental, and mental health care |
|
information; and |
|
(2) information and records maintained by any state or |
|
local government agency, including: |
|
(A) a birth certificate; |
|
(B) law enforcement investigative data; |
|
(C) medical examiner investigative data; |
|
(D) juvenile court records; |
|
(E) parole and probation information and |
|
records; and |
|
(F) adult or child protective services |
|
information and records. |
|
(b) On request of the patient safety organization, the |
|
custodian of the relevant information and records relating to a |
|
deceased person shall provide those records to the patient safety |
|
organization at no charge. |
|
Sec. 531.853. MORTALITY REVIEW REPORT. The patient safety |
|
organization shall, to the extent allowed by federal law, submit: |
|
(1) to the Department of Aging and Disability |
|
Services, the Department of Family and Protective Services, the |
|
office of independent ombudsman for state supported living centers, |
|
and the commission's office of inspector general a report of the |
|
findings of the mortality review; and |
|
(2) semiannually to the governor, the lieutenant |
|
governor, the speaker of the house of representatives, and the |
|
standing committees of the senate and house of representatives with |
|
primary jurisdiction over the Department of Aging and Disability |
|
Services a report that contains: |
|
(A) aggregate information regarding the deaths |
|
for which the patient safety organization performed an independent |
|
mortality review; |
|
(B) trends in the causes of death identified by |
|
the patient safety organization; and |
|
(C) any suggestions for system-wide improvements |
|
to address conditions that contributed to deaths reviewed by the |
|
patient safety organization. |
|
Sec. 531.854. USE AND PUBLICATION RESTRICTIONS; |
|
CONFIDENTIALITY. (a) The commission may use or publish |
|
information under this subchapter only to advance statewide |
|
practices regarding the treatment and care of individuals with |
|
developmental disabilities. A summary of the data in the patient |
|
safety organization's reports or a statistical compilation of data |
|
reports may be released by the commission for general publication |
|
if the summary or statistical compilation does not contain any |
|
information that would permit the identification of an individual |
|
or that is patient safety work product. |
|
(b) Information and records acquired by the patient safety |
|
organization in the exercise of its duties under this subchapter |
|
are confidential and exempt from disclosure under the open records |
|
law, Chapter 552, and may be disclosed only as necessary to carry |
|
out the patient safety organization's duties. |
|
(c) The identity of a person whose death was reviewed in |
|
accordance with this subchapter is confidential and may not be |
|
revealed. |
|
(d) The identity of a health care provider or the name of a |
|
facility or agency that provided services to or was the residence of |
|
a person whose death was reviewed in accordance with this |
|
subchapter is confidential and may not be revealed. |
|
(e) Reports, information, statements, memoranda, and other |
|
information furnished under this subchapter and any findings or |
|
conclusions resulting from a review by the patient safety |
|
organization are privileged. |
|
Sec. 531.855. LIMITATION ON LIABILITY. A health care |
|
provider or other person is not civilly or criminally liable for |
|
furnishing information to the patient safety organization or to the |
|
commission for use by the patient safety organization in accordance |
|
with this subchapter unless the person acted in bad faith or |
|
knowingly provided false information to the patient safety |
|
organization or the commission. |
|
SECTION 10. Subchapter B, Chapter 252, Health and Safety |
|
Code, is amended by adding Section 252.0311 to read as follows: |
|
Sec. 252.0311. PERSON INELIGIBLE FOR LICENSE. (a) In this |
|
section, "controlling person" means a person who, acting alone or |
|
with others, has the ability to directly or indirectly influence, |
|
direct, or cause the direction of the management, expenditure of |
|
money, or policies of a facility or a person who operates a |
|
facility. The term includes: |
|
(1) a management company or other business entity that |
|
operates or contracts with others for the operation of a facility; |
|
(2) a person who is a controlling person of a |
|
management company or other business entity that operates a |
|
facility or that contracts with another person for the operation of |
|
a facility; and |
|
(3) any other individual who, because of a personal, |
|
familial, or other relationship with the owner, manager, or |
|
provider of a facility, is in a position of actual control or |
|
authority with respect to the facility, without regard to whether |
|
the individual is formally named as an owner, manager, director, |
|
officer, provider, consultant, contractor, or employee of the |
|
facility. |
|
(b) A controlling person described by Subsection (a)(3) |
|
does not include an employee, lender, secured creditor, or other |
|
person who does not exercise formal or actual influence or control |
|
over the operation of a facility. |
|
(c) The executive commissioner of the Health and Human |
|
Services Commission may adopt rules that specify the ownership |
|
interests and other relationships that qualify a person as a |
|
controlling person. |
|
(d) A person is not eligible for a license or to renew a |
|
license if the applicant, a controlling person with respect to the |
|
applicant, or an administrator or chief financial officer of the |
|
applicant has been convicted of an offense that would bar a person's |
|
employment at a facility in accordance with Chapter 250. |
|
SECTION 11. 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 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 department; |
|
(3) a notice in a form prescribed by the department |
|
stating that inspection and related reports are available at the |
|
facility for public inspection and providing the 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; [and] |
|
(5) a notice providing instructions for reporting an |
|
allegation of abuse, neglect, or exploitation to the 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 12. The heading to Subchapter E, Chapter 252, |
|
Health and Safety Code, is amended to read as follows: |
|
SUBCHAPTER E. INVESTIGATIONS [REPORTS] OF ABUSE, |
|
[AND] NEGLECT, AND EXPLOITATION AND REPORTS OF RETALIATION |
|
SECTION 13. Sections 252.121, 252.122, 252.125, and |
|
252.126, Health and Safety Code, are amended to read as follows: |
|
Sec. 252.121. AUTHORITY TO RECEIVE REPORTS AND INVESTIGATE |
|
[DEFINITION]. (a) A person, including an owner or employee of a |
|
facility, who has cause to believe that [In this subchapter,
|
|
"designated agency" means an agency designated by a court to be
|
|
responsible for the protection of] a resident is being or has been |
|
subjected to [who is the subject of a report of] abuse, [or] |
|
neglect, or exploitation shall report the suspected abuse, neglect, |
|
or exploitation to the Department of Family and Protective |
|
Services, as required by Chapter 48, Human Resources Code, or |
|
Chapter 261, Family Code, as appropriate. The Department of Family |
|
and Protective Services shall investigate the allegation of abuse, |
|
neglect, or exploitation in the manner provided by Chapter 48, |
|
Human Resources Code, or Section 261.404, Family Code, as |
|
applicable. |
|
(b) If the department receives a report of suspected abuse, |
|
neglect, or exploitation of a resident of a facility licensed under |
|
this chapter, the department shall immediately refer the report to |
|
the Department of Family and Protective Services for investigation. |
|
Sec. 252.122. NOTIFICATION OF DUTY TO REPORT [REPORTING OF] |
|
ABUSE, [AND] NEGLECT, AND EXPLOITATION. [(a)
A person, including
|
|
an owner or employee of a facility, who has cause to believe that
|
|
the physical or mental health or welfare of a resident has been or
|
|
may be adversely affected by abuse or neglect caused by another
|
|
person shall report the abuse or neglect to the department, to a
|
|
designated agency, or to both the department and the designated
|
|
agency, as specified in department rules.
|
|
[(b)] Each facility shall require each employee of the |
|
facility, as a condition of employment with the facility, to sign a |
|
statement that the employee realizes that the employee may be |
|
criminally liable for failure to report abuse, [or] neglect, or |
|
exploitation. |
|
[(c)
A person shall make an oral report immediately on
|
|
learning of abuse or neglect and shall make a written report to the
|
|
same agency not later than the fifth day after the oral report is
|
|
made.] |
|
Sec. 252.125. IMMEDIATE REMOVAL TO PROTECT RESIDENT |
|
[INVESTIGATION AND REPORT OF RECEIVING AGENCY]. [(a)
The
|
|
department or the designated agency shall make a thorough
|
|
investigation promptly after receiving either the oral or written
|
|
report.
|
|
[(b)
The primary purpose of the investigation is the
|
|
protection of the resident.
|
|
[(c)
In the investigation, the department or the designated
|
|
agency shall determine:
|
|
[(1)
the nature, extent, and cause of the abuse or
|
|
neglect;
|
|
[(2)
the identity of the person responsible for the
|
|
abuse or neglect;
|
|
[(3) the names and conditions of the other residents;
|
|
[(4)
an evaluation of the persons responsible for the
|
|
care of the residents;
|
|
[(5) the adequacy of the facility environment; and
|
|
[(6) any other information required by the department.
|
|
[(d)
The investigation may include a visit to the resident's
|
|
facility and an interview with the resident, if considered
|
|
appropriate by the department.
|
|
[(e)
If the department attempts to carry out an on-site
|
|
investigation and it is shown that admission to the facility or any
|
|
place where a resident is located cannot be obtained, a probate or
|
|
county court shall order the person responsible for the care of the
|
|
resident or the person in charge of a place where the resident is
|
|
located to allow admission for the investigation and any interview
|
|
with the resident.
|
|
[(f)] Before the completion of the investigation by the |
|
Department of Family and Protective Services, the department shall |
|
file a petition for temporary care and protection of a [the] |
|
resident if the 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, [or] neglect, or exploitation. |
|
[(g)
The department or the designated agency shall make a
|
|
complete written report of the investigation and submit the report
|
|
and its recommendations to the district attorney and the
|
|
appropriate law enforcement agency and, if necessary, to the
|
|
department on the department's request.] |
|
Sec. 252.126. CONFIDENTIALITY; DISCLOSURE OF INVESTIGATION |
|
REPORT. (a) A report, record, or working paper used or developed |
|
in an investigation made under this subchapter is confidential and |
|
may be disclosed only as provided by Chapter 48, Human Resources |
|
Code, Chapter 261, Family Code, or this section [for purposes
|
|
consistent with the rules adopted by the board or the designated
|
|
agency]. |
|
(b) The Department of Family and Protective Services shall |
|
provide a copy of a completed investigation report to the |
|
department and may disclose information related to the |
|
investigation at any time to the department as necessary to protect |
|
a resident of a facility from abuse, neglect, or exploitation. |
|
SECTION 14. Subsection (h), Section 252.132, Health and |
|
Safety Code, is amended to read as follows: |
|
(h) Each facility shall require each employee of the |
|
facility, as a condition of employment with the facility, to sign a |
|
statement that the employee understands the employee's rights under |
|
this section. The statement must be part of the statement required |
|
under Section 252.122 [252.122(b)]. If a facility does not require |
|
an employee to read and sign the statement, the periods prescribed |
|
by Subsection (e) do not apply, and the petitioner must bring suit |
|
not later than the second anniversary of the date on which the |
|
person's employment is suspended or terminated. |
|
SECTION 15. Subdivision (4), Section 253.001, Health and |
|
Safety Code, is amended to read as follows: |
|
(4) "Facility" means: |
|
(A) a facility: |
|
(i) licensed by the department; or |
|
(ii) licensed under Chapter 252; |
|
(B) an adult foster care provider that contracts |
|
with the department; or |
|
(C) a home and community support services agency |
|
licensed by the department under Chapter 142. |
|
SECTION 16. Section 253.002, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 253.002. INVESTIGATION BY DEPARTMENT. (a) If the |
|
department receives a report that an employee of a facility, other |
|
than a facility licensed under Chapter 252, committed reportable |
|
conduct, the department shall investigate the report to determine |
|
whether the employee has committed the reportable conduct. |
|
(b) If the Department of Aging and Disability Services |
|
receives a report that an employee of a facility licensed under |
|
Chapter 252 committed reportable conduct, the department shall |
|
forward that report to the Department of Family and Protective |
|
Services for investigation. |
|
SECTION 17. Subdivision (17), Section 531.002, Health and |
|
Safety Code, is amended to read as follows: |
|
(17) "State supported living center [school]" means a |
|
state-supported and structured residential facility operated by |
|
the Department of Aging and Disability Services [department] to |
|
provide to clients with mental retardation a variety of services, |
|
including medical treatment, specialized therapy, and training in |
|
the acquisition of personal, social, and vocational skills. |
|
SECTION 18. Chapter 531, Health and Safety Code, is amended |
|
by adding Section 531.0021 to read as follows: |
|
Sec. 531.0021. REFERENCE TO STATE SCHOOL OR SUPERINTENDENT. |
|
(a) A reference in law to a "state school" means a state supported |
|
living center. |
|
(b) A reference in law to a "superintendent," to the extent |
|
the term is intended to refer to the person in charge of a state |
|
supported living center, means the director of a state supported |
|
living center. |
|
SECTION 19. Subsection (b), Section 532.001, Health and |
|
Safety Code, is amended to read as follows: |
|
(b) The Department of Aging and Disability Services and the |
|
Department of State Health Services [department] also include |
|
[includes] community services operated by those departments [the
|
|
department] and the following facilities, as appropriate: |
|
(1) the central office of each [the] department; |
|
(2) the Austin State Hospital; |
|
(3) the Big Spring State Hospital; |
|
(4) the Kerrville State Hospital; |
|
(5) the Rusk State Hospital; |
|
(6) the San Antonio State Hospital; |
|
(7) the Terrell State Hospital; |
|
(8) the North Texas State Hospital; |
|
(9) the Abilene State Supported Living Center |
|
[School]; |
|
(10) the Austin State Supported Living Center |
|
[School]; |
|
(11) the Brenham State Supported Living Center |
|
[School]; |
|
(12) the Corpus Christi State Supported Living Center |
|
[School]; |
|
(13) the Denton State Supported Living Center |
|
[School]; |
|
(14) the Lubbock State Supported Living Center |
|
[School]; |
|
(15) the Lufkin State Supported Living Center |
|
[School]; |
|
(16) the Mexia State Supported Living Center [School]; |
|
(17) the Richmond State Supported Living Center |
|
[School]; |
|
(18) the San Angelo State Supported Living Center |
|
[School]; |
|
(19) the San Antonio State Supported Living Center |
|
[School]; |
|
(20) the El Paso State Supported Living Center; |
|
(21) the Rio Grande State Center; and |
|
(22) the Waco Center for Youth. |
|
SECTION 20. Section 551.022, Health and Safety Code, is |
|
amended by adding Subsection (e) to read as follows: |
|
(e) This section does not apply to a state supported living |
|
center or the director of a state supported living center. |
|
SECTION 21. Subchapter B, Chapter 551, Health and Safety |
|
Code, is amended by adding Section 551.0225 to read as follows: |
|
Sec. 551.0225. POWERS AND DUTIES OF STATE SUPPORTED LIVING |
|
CENTER DIRECTOR. (a) The director of a state supported living |
|
center is the administrative head of the center. |
|
(b) The director of a state supported living center has the |
|
custody of and responsibility to care for the buildings, grounds, |
|
furniture, and other property relating to the center. |
|
(c) The director of a state supported living center shall: |
|
(1) oversee the admission and discharge of residents |
|
and clients; |
|
(2) keep a register of all residents and clients |
|
admitted to or discharged from the center; |
|
(3) ensure that the civil rights of residents and |
|
clients of the center are protected; |
|
(4) ensure the health, safety, and general welfare of |
|
residents and clients of the center; |
|
(5) supervise repairs and improvements to the center; |
|
(6) ensure that center money is spent judiciously and |
|
economically; |
|
(7) keep an accurate and detailed account of all money |
|
received and spent, stating the source of the money and on whom and |
|
the purpose for which the money is spent; |
|
(8) keep a full record of the center's operations; |
|
(9) monitor the arrival and departure of individuals |
|
to and from the center as appropriate to ensure the safety of |
|
residents; and |
|
(10) ensure that residents' family members and legally |
|
authorized representatives are notified of serious events that may |
|
indicate problems in the care or treatment of residents. |
|
(d) In accordance with department rules and operating |
|
procedures, the director of a state supported living center may: |
|
(1) establish policy to govern the center that the |
|
director considers will best promote the residents' interest and |
|
welfare; |
|
(2) hire subordinate officers, teachers, and other |
|
employees and set their salaries, in the absence of other law; and |
|
(3) dismiss a subordinate officer, teacher, or |
|
employee for good cause. |
|
(e) The Department of Aging and Disability Services shall, |
|
with input from residents of a state supported living center, and |
|
the family members and legally authorized representatives of those |
|
residents, develop a policy that defines "serious event" for |
|
purposes of Subsection (c)(10). |
|
SECTION 22. Subtitle B, Title 7, Health and Safety Code, is |
|
amended by adding Chapter 555 to read as follows: |
|
CHAPTER 555. STATE SUPPORTED LIVING CENTERS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 555.001. DEFINITIONS. In this chapter: |
|
(1) "Alleged offender resident" means a person with |
|
mental retardation who: |
|
(A) was committed to or transferred to a state |
|
supported living center under Chapter 46B or 46C, Code of Criminal |
|
Procedure, as a result of being charged with or convicted of a |
|
criminal offense; or |
|
(B) is a child committed to or transferred to a |
|
state supported living center under Chapter 55, Family Code, as a |
|
result of being alleged by petition or having been found to have |
|
engaged in delinquent conduct constituting a criminal offense. |
|
(2) "Center" means the state supported living centers |
|
and the ICF-MR component of the Rio Grande State Center. |
|
(3) "Center employee" means an employee of a state |
|
supported living center or the ICF-MR component of the Rio Grande |
|
State Center. |
|
(4) "Client" means a person with mental retardation |
|
who receives ICF-MR services from a state supported living center |
|
or the ICF-MR component of the Rio Grande State Center. |
|
(5) "Commission" means the Health and Human Services |
|
Commission. |
|
(6) "Complaint" means information received by the |
|
office of independent ombudsman regarding a possible violation of a |
|
right of a resident or client and includes information received |
|
regarding a failure by a state supported living center or the ICF-MR |
|
component of the Rio Grande State Center to comply with the |
|
department's policies and procedures relating to the community |
|
living options information process. |
|
(7) "Department" means the Department of Aging and |
|
Disability Services. |
|
(8) "Direct care employee" means a center employee who |
|
provides direct delivery of services to a resident or client. |
|
(9) "Executive commissioner" means the executive |
|
commissioner of the Health and Human Services Commission. |
|
(10) "High-risk alleged offender resident" means an |
|
alleged offender resident who has been determined under Section |
|
555.003 to be at risk of inflicting substantial physical harm to |
|
another. |
|
(11) "Independent ombudsman" means the individual who |
|
has been appointed to the office of independent ombudsman for state |
|
supported living centers. |
|
(12) "Inspector general" means the Health and Human |
|
Services Commission's office of inspector general. |
|
(13) "Interdisciplinary team" has the meaning |
|
assigned by Section 591.003. |
|
(14) "Office" means the office of independent |
|
ombudsman for state supported living centers established under |
|
Subchapter C. |
|
(15) "Resident" means a person with mental retardation |
|
who resides in a state supported living center or the ICF-MR |
|
component of the Rio Grande State Center. |
|
(16) "State supported living center" has the meaning |
|
assigned by Section 531.002. |
|
Sec. 555.002. FORENSIC STATE SUPPORTED LIVING CENTER. |
|
(a) The department shall establish a separate forensic state |
|
supported living center for the care apart from other clients and |
|
residents of high-risk alleged offender residents. The department |
|
shall designate the Mexia State Supported Living Center for this |
|
purpose. |
|
(b) In establishing the forensic state supported living |
|
center, the department shall: |
|
(1) transfer an alleged offender resident already |
|
residing in a center who is classified as a high-risk alleged |
|
offender resident in accordance with Section 555.003, to the |
|
forensic state supported living center; |
|
(2) place high-risk alleged offender residents in |
|
separate homes at the forensic state supported living center based |
|
on whether an individual is: |
|
(A) an adult or a person younger than 18 years of |
|
age; or |
|
(B) male or female; |
|
(3) place alleged offender residents who are charged |
|
with or convicted of a felony offense or who are alleged by petition |
|
or have been found to have engaged in delinquent conduct defined as |
|
a felony offense, at the time the residents are initially committed |
|
to or transferred to a center, in the forensic state supported |
|
living center until a determination under Section 555.003 has been |
|
completed; |
|
(4) transfer all residents who request a transfer, |
|
other than high-risk alleged offender residents and alleged |
|
offender residents described by Subdivision (3) and for whom a |
|
determination has not been completed under Section 555.003, from |
|
the forensic state supported living center; and |
|
(5) provide training regarding the service delivery |
|
system for high-risk alleged offender residents to direct care |
|
employees of the forensic state supported living center. |
|
(c) An alleged offender resident committed to the forensic |
|
state supported living center, for whom a determination under |
|
Section 555.003 has been completed and who is not classified as a |
|
high-risk alleged offender resident, may request a transfer to |
|
another center in accordance with Subchapter B, Chapter 594. |
|
(d) The department shall ensure that the forensic state |
|
supported living center: |
|
(1) complies with the requirements for ICF-MR |
|
certification under the Medicaid program, as appropriate; and |
|
(2) has additional center employees, including direct |
|
care employees, to protect the safety of center employees, |
|
residents, and the community. |
|
(e) The department shall collect data regarding the |
|
commitment of alleged offender residents to state supported living |
|
centers, including any offense with which an alleged offender |
|
resident is charged, the location of the committing court, whether |
|
the alleged offender resident has previously been in the custody of |
|
the Texas Youth Commission or the Department of Family and |
|
Protective Services, and whether the alleged offender resident |
|
receives mental health services or previously received any services |
|
under a Section 1915(c) waiver program. The department shall |
|
annually submit to the governor, the lieutenant governor, the |
|
speaker of the house of representatives, and the standing |
|
committees of the legislature with primary subject matter |
|
jurisdiction over state supported living centers a report of the |
|
information collected under this section. The report may not |
|
contain personally identifiable information for any person in the |
|
report. |
|
Sec. 555.003. DETERMINATION OF HIGH-RISK ALLEGED OFFENDER |
|
STATUS. (a) Not later than the 30th day after the date an alleged |
|
offender resident is first committed to a state supported living |
|
center and, if the resident is classified as a high-risk alleged |
|
offender resident, annually on the anniversary of that date, an |
|
interdisciplinary team shall determine whether the alleged |
|
offender resident is at risk of inflicting substantial physical |
|
harm to another and should be classified or remain classified as a |
|
high-risk alleged offender resident. |
|
(b) In making a determination under Subsection (a), the |
|
interdisciplinary team shall document and collect evidence |
|
regarding the reason the alleged offender resident is determined to |
|
be at risk of inflicting substantial physical harm to another. |
|
(c) The interdisciplinary team shall provide the team's |
|
findings regarding whether the alleged offender resident is at risk |
|
of inflicting substantial physical harm to another and the |
|
documentation and evidence collected under this section to: |
|
(1) the department; |
|
(2) the director of the state supported living center; |
|
(3) the independent ombudsman; |
|
(4) the alleged offender resident or the alleged |
|
offender resident's parent if the resident is a minor; and |
|
(5) the alleged offender resident's legally authorized |
|
representative. |
|
(d) An alleged offender resident who is determined to be at |
|
risk of inflicting substantial physical harm to another and is |
|
classified as a high-risk alleged offender resident is entitled to |
|
an administrative hearing with the department to contest that |
|
determination and classification. |
|
(e) An individual who has exhausted the administrative |
|
remedies provided by Subsection (d) may bring a suit to appeal the |
|
determination and classification in district court in Travis |
|
County. The suit must be filed not later than the 30th day after the |
|
date the final order in the administrative hearing is provided to |
|
the individual. An appeal under this section is by trial de novo. |
|
[Sections 555.004-555.020 reserved for expansion] |
|
SUBCHAPTER B. POWERS AND DUTIES |
|
Sec. 555.021. REQUIRED CRIMINAL HISTORY CHECKS FOR |
|
EMPLOYEES AND VOLUNTEERS OF CENTERS. (a) The department and the |
|
Department of State Health Services shall perform a state and |
|
federal criminal history background check on a person: |
|
(1) who is: |
|
(A) an applicant for employment with the agency; |
|
(B) an employee of the agency; |
|
(C) a volunteer with the agency; or |
|
(D) an applicant for a volunteer position with |
|
the agency; and |
|
(2) who would be placed in direct contact with a |
|
resident or client. |
|
(b) The department and the Department of State Health |
|
Services shall require a person described by Subsection (a) to |
|
submit fingerprints in a form and of a quality acceptable to the |
|
Department of Public Safety and the Federal Bureau of Investigation |
|
for use in conducting a criminal history background check. |
|
(c) Each agency shall obtain electronic updates from the |
|
Department of Public Safety of arrests and convictions of a person: |
|
(1) for whom the agency performs a background check |
|
under Subsection (a); and |
|
(2) who remains an employee or volunteer of the agency |
|
and continues to have direct contact with a resident or client. |
|
Sec. 555.022. DRUG TESTING; POLICY. (a) The executive |
|
commissioner shall adopt a policy regarding random testing and |
|
reasonable suspicion testing for the illegal use of drugs by a |
|
center employee. |
|
(b) The policy adopted under Subsection (a) must provide |
|
that a center employee may be terminated solely on the basis of a |
|
single positive test for illegal use of a controlled substance. The |
|
policy must establish an appeals process for a center employee who |
|
tests positively for illegal use of a controlled substance. |
|
(c) The director of a state supported living center or the |
|
superintendent of the Rio Grande State Center shall enforce the |
|
policy adopted under Subsection (a) by performing necessary drug |
|
testing of the center employees for the use of a controlled |
|
substance as defined by Section 481.002. |
|
(d) Testing under this section may be performed on a random |
|
basis or on reasonable suspicion of the use of a controlled |
|
substance. |
|
(e) For purposes of this section, a report made under |
|
Section 555.023 is considered reasonable suspicion of the use of a |
|
controlled substance. |
|
Sec. 555.023. REPORTS OF ILLEGAL DRUG USE; POLICY. The |
|
executive commissioner shall adopt a policy requiring a center |
|
employee who knows or reasonably suspects that another center |
|
employee is illegally using or under the influence of a controlled |
|
substance, as defined by Section 481.002, to report that knowledge |
|
or reasonable suspicion to the director of the state supported |
|
living center or the superintendent of the Rio Grande State Center, |
|
as appropriate. |
|
Sec. 555.024. CENTER EMPLOYEE TRAINING. (a) Before a |
|
center employee begins to perform the employee's duties without |
|
direct supervision, the department shall provide the employee with |
|
competency training and a course of instruction about the general |
|
duties of a center employee. The department shall ensure the basic |
|
center employee competency course focuses on: |
|
(1) the uniqueness of the individuals the center |
|
employee serves; |
|
(2) techniques for improving quality of life for and |
|
promoting the health and safety of individuals with mental |
|
retardation; and |
|
(3) the conduct expected of center employees. |
|
(b) The department shall ensure the training required by |
|
Subsection (a) provides instruction and information regarding the |
|
following topics: |
|
(1) the general operation and layout of the center at |
|
which the person is employed, including armed intruder lockdown |
|
procedures; |
|
(2) an introduction to mental retardation; |
|
(3) an introduction to autism; |
|
(4) an introduction to mental illness and dual |
|
diagnosis; |
|
(5) the rights of individuals with mental retardation |
|
who receive services from the department; |
|
(6) respecting personal choices made by residents and |
|
clients; |
|
(7) the safe and proper use of restraints; |
|
(8) recognizing and reporting: |
|
(A) evidence of abuse, neglect, and exploitation |
|
of individuals with mental retardation; |
|
(B) unusual incidents; |
|
(C) reasonable suspicion of illegal drug use in |
|
the workplace; |
|
(D) workplace violence; or |
|
(E) sexual harassment in the workplace; |
|
(9) preventing and treating infection; |
|
(10) first aid; |
|
(11) cardiopulmonary resuscitation; |
|
(12) the Health Insurance Portability and |
|
Accountability Act of 1996 (Pub. L. No. 104-191); and |
|
(13) the rights of center employees. |
|
(c) In addition to the training required by Subsection (a) |
|
and before a direct care employee begins to perform the direct care |
|
employee's duties without direct supervision, the department shall |
|
provide a direct care employee with training and instructional |
|
information regarding implementation of the interdisciplinary |
|
treatment program for each resident or client for whom the direct |
|
care employee will provide direct care, including the following |
|
topics: |
|
(1) prevention and management of aggressive or violent |
|
behavior; |
|
(2) observing and reporting changes in behavior, |
|
appearance, or health of residents and clients; |
|
(3) positive behavior support; |
|
(4) emergency response; |
|
(5) person-directed plans; |
|
(6) self-determination; |
|
(7) seizure safety; |
|
(8) techniques for: |
|
(A) lifting; |
|
(B) positioning; and |
|
(C) movement and mobility; |
|
(9) working with aging residents and clients; |
|
(10) assisting residents and clients: |
|
(A) who have a visual impairment; |
|
(B) who have a hearing deficit; or |
|
(C) who require the use of adaptive devices and |
|
specialized equipment; |
|
(11) communicating with residents and clients who use |
|
augmentative and alternative devices for communication; |
|
(12) assisting residents and clients with personal |
|
hygiene; |
|
(13) recognizing appropriate food textures; |
|
(14) using proper feeding techniques to assist |
|
residents and clients with meals; |
|
(15) physical and nutritional management plans; and |
|
(16) home and community-based services, including the |
|
principles of community inclusion and participation and the |
|
community living options information process. |
|
(d) The executive commissioner shall adopt rules that |
|
require a center to provide refresher training courses to direct |
|
care employees on a regular basis. |
|
(e) A center may allow an employee of an intermediate care |
|
facility for persons with mental retardation licensed by the |
|
department, an employee of a person licensed or certified to |
|
provide Section 1915(c) waiver program services, or another |
|
employee or professional involved in the provision of services to |
|
persons with mental retardation to receive information and training |
|
under this section, as appropriate. The center may charge an |
|
administrative fee in an amount not to exceed the cost of providing |
|
the information or training. |
|
Sec. 555.025. VIDEO SURVEILLANCE. (a) In this section, |
|
"private space" means a place in a center in which a resident or |
|
client has a reasonable expectation of privacy, including: |
|
(1) a bedroom; |
|
(2) a bathroom; |
|
(3) a place in which a resident or client receives |
|
medical or nursing services; |
|
(4) a place in which a resident or client meets |
|
privately with visitors; or |
|
(5) a place in which a resident or client privately |
|
makes phone calls. |
|
(b) The department shall install and operate video |
|
surveillance equipment in a center for the purpose of detecting and |
|
preventing the exploitation or abuse of residents and clients. |
|
(c) The department may not install or operate video |
|
surveillance equipment in a private space or in a location in which |
|
video surveillance equipment can capture images within a private |
|
space. |
|
(d) The department shall ensure that the use of video |
|
surveillance equipment under this section complies with federal |
|
requirements for ICF-MR certification. |
|
[Sections 555.026-555.050 reserved for expansion] |
|
SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE SUPPORTED |
|
LIVING CENTERS |
|
Sec. 555.051. ESTABLISHMENT; PURPOSE. The office of |
|
independent ombudsman is established for the purpose of |
|
investigating, evaluating, and securing the rights of residents and |
|
clients of state supported living centers and the ICF-MR component |
|
of the Rio Grande State Center. The office is administratively |
|
attached to the department. The department shall provide |
|
administrative support and resources to the office as necessary for |
|
the office to perform its duties. |
|
Sec. 555.052. INDEPENDENCE. The independent ombudsman in |
|
the performance of the ombudsman's duties and powers under this |
|
subchapter acts independently of the department. |
|
Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. |
|
(a) The governor shall appoint the independent ombudsman. |
|
(b) The governor may appoint as independent ombudsman only |
|
an individual with at least five years of experience managing and |
|
ensuring the quality of care and services provided to individuals |
|
with mental retardation. |
|
Sec. 555.054. ASSISTANT OMBUDSMEN. (a) The independent |
|
ombudsman shall: |
|
(1) hire assistant ombudsmen to perform, under the |
|
direction of the independent ombudsman, the same duties and |
|
exercise the same powers as the independent ombudsman; and |
|
(2) station an assistant ombudsman at each center. |
|
(b) The independent ombudsman may hire as assistant |
|
ombudsmen only individuals with at least five years of experience |
|
ensuring the quality of care and services provided to individuals |
|
with mental retardation. |
|
Sec. 555.055. CONFLICT OF INTEREST. A person may not serve |
|
as independent ombudsman or as an assistant ombudsman if the person |
|
or the person's spouse: |
|
(1) is employed by or participates in the management |
|
of a business entity or other organization receiving funds from the |
|
department; |
|
(2) owns or controls, directly or indirectly, any |
|
interest in a business entity or other organization receiving funds |
|
from the department; or |
|
(3) is required to register as a lobbyist under |
|
Chapter 305, Government Code, because of the person's activities or |
|
compensation on behalf of a profession related to the operation of |
|
the department. |
|
Sec. 555.056. REPORT. (a) The independent ombudsman shall |
|
submit on a biannual basis to the governor, the lieutenant |
|
governor, the speaker of the house of representatives, and the |
|
chairs of the standing committees of the senate and the house of |
|
representatives with primary jurisdiction over state supported |
|
living centers a report that is both aggregated and disaggregated |
|
by individual center and describes: |
|
(1) the work of the independent ombudsman; |
|
(2) the results of any review or investigation |
|
undertaken by the independent ombudsman, including a review or |
|
investigation of services contracted by the department; |
|
(3) any recommendations that the independent |
|
ombudsman has in relation to the duties of the independent |
|
ombudsman; and |
|
(4) any recommendations that the independent |
|
ombudsman has for systemic improvements needed to decrease |
|
incidents of abuse, neglect, or exploitation at an individual |
|
center or at all centers. |
|
(b) The independent ombudsman shall ensure that information |
|
submitted in a report under Subsection (a) does not permit the |
|
identification of an individual. |
|
(c) The independent ombudsman shall immediately report to |
|
the governor, the lieutenant governor, the speaker of the house of |
|
representatives, and the chairs of the standing committees of the |
|
senate and the house of representatives having primary jurisdiction |
|
over the Department of Aging and Disability Services any |
|
particularly serious or flagrant: |
|
(1) case of abuse or injury of a resident or client |
|
about which the independent ombudsman is made aware; |
|
(2) problem concerning the administration of a center |
|
program or operation; or |
|
(3) interference by a center, the department, or the |
|
commission, other than actions by the commission's office of |
|
inspector general in accordance with the office's duties, with an |
|
investigation conducted by the independent ombudsman. |
|
Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The |
|
department shall allow any resident or client, authorized |
|
representative of a resident or client, family member of a resident |
|
or client, or other interested party to communicate with the |
|
independent ombudsman or an assistant ombudsman. The |
|
communication: |
|
(1) may be in person, by mail, or by any other means; |
|
and |
|
(2) is confidential and privileged. |
|
(b) The records of the independent ombudsman are |
|
confidential, except that the independent ombudsman shall: |
|
(1) share with the Department of Family and Protective |
|
Services a communication that may involve the abuse, neglect, or |
|
exploitation of a resident or client; |
|
(2) share with the inspector general a communication |
|
that may involve an alleged criminal offense; |
|
(3) share with the regulatory services division of the |
|
department a communication that may involve a violation of an |
|
ICF-MR standard or condition of participation; and |
|
(4) disclose the ombudsman's nonprivileged records if |
|
required by a court order on a showing of good cause. |
|
(c) The independent ombudsman may make reports relating to |
|
an investigation by the independent ombudsman public after the |
|
investigation is complete but only if the name and any other |
|
personally identifiable information of a resident or client, |
|
legally authorized representative of a resident or client, family |
|
member of a resident or client, center, center employee, or other |
|
individual are redacted from the report and remain confidential. |
|
The independent ombudsman may provide an unredacted report to the |
|
center involved in the investigation, the department, the |
|
Department of Family and Protective Services, and the inspector |
|
general. |
|
(d) The name, address, or other personally identifiable |
|
information of a person who files a complaint with the office of |
|
independent ombudsman, information generated by the office of |
|
independent ombudsman in the course of an investigation, and |
|
confidential records obtained by the office of independent |
|
ombudsman are confidential and not subject to disclosure under |
|
Chapter 552, Government Code, except as provided by this section. |
|
Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The |
|
independent ombudsman shall promote awareness among the public, |
|
residents, clients, and center employees of: |
|
(1) how the office may be contacted; |
|
(2) the purpose of the office; and |
|
(3) the services the office provides. |
|
Sec. 555.059. DUTIES AND POWERS. (a) The independent |
|
ombudsman shall: |
|
(1) evaluate the process by which a center |
|
investigates, reviews, and reports an injury to a resident or |
|
client or an unusual incident; |
|
(2) evaluate the delivery of services to residents and |
|
clients to ensure that the rights of residents and clients are fully |
|
observed, including ensuring that each center conducts sufficient |
|
unannounced patrols; |
|
(3) immediately refer a complaint alleging the abuse, |
|
neglect, or exploitation of a resident or client to the Department |
|
of Family and Protective Services; |
|
(4) refer a complaint alleging employee misconduct |
|
that does not involve abuse, neglect, or exploitation or a possible |
|
violation of an ICF-MR standard or condition of participation to |
|
the regulatory services division of the department; |
|
(5) refer a complaint alleging a criminal offense, |
|
other than an allegation of abuse, neglect, or exploitation of a |
|
resident or client, to the inspector general; |
|
(6) conduct investigations of complaints, other than |
|
complaints alleging criminal offenses or the abuse, neglect, or |
|
exploitation of a resident or client, if the office determines |
|
that: |
|
(A) a resident or client or the resident's or |
|
client's family may be in need of assistance from the office; or |
|
(B) a complaint raises the possibility of a |
|
systemic issue in the center's provision of services; |
|
(7) conduct biennial on-site audits at each center of: |
|
(A) the ratio of direct care employees to |
|
residents; |
|
(B) the provision and adequacy of training to: |
|
(i) center employees; and |
|
(ii) direct care employees; and |
|
(C) if the center serves alleged offender |
|
residents, the provision of specialized training to direct care |
|
employees; |
|
(8) conduct an annual audit of each center's policies, |
|
practices, and procedures to ensure that each resident and client |
|
is encouraged to exercise the resident's or client's rights, |
|
including: |
|
(A) the right to file a complaint; and |
|
(B) the right to due process; |
|
(9) prepare and deliver an annual report regarding the |
|
findings of each audit to the: |
|
(A) executive commissioner; |
|
(B) commissioner; |
|
(C) Aging and Disability Services Council; |
|
(D) governor; |
|
(E) lieutenant governor; |
|
(F) speaker of the house of representatives; |
|
(G) standing committees of the senate and house |
|
of representatives with primary jurisdiction over state supported |
|
living centers; and |
|
(H) state auditor; |
|
(10) require a center to provide access to all |
|
records, data, and other information under the control of the |
|
center that the independent ombudsman determines is necessary to |
|
investigate a complaint or to conduct an audit under this section; |
|
(11) review all final reports produced by the |
|
Department of Family and Protective Services, the regulatory |
|
services division of the department, and the inspector general |
|
regarding a complaint referred by the independent ombudsman; |
|
(12) provide assistance to a resident, client, |
|
authorized representative of a resident or client, or family member |
|
of a resident or client who the independent ombudsman determines is |
|
in need of assistance, including advocating with an agency, |
|
provider, or other person in the best interests of the resident or |
|
client; |
|
(13) make appropriate referrals under any of the |
|
duties and powers listed in this subsection; and |
|
(14) monitor and evaluate the department's actions |
|
relating to any problem identified or recommendation included in a |
|
report received from the Department of Family and Protective |
|
Services relating to an investigation of alleged abuse, neglect, or |
|
exploitation of a resident or client. |
|
(b) The independent ombudsman may apprise a person who is |
|
interested in a resident's or client's welfare of the rights of the |
|
resident or client. |
|
(c) To assess whether a resident's or client's rights have |
|
been violated, the independent ombudsman may, in any matter that |
|
does not involve an alleged criminal offense or the abuse, neglect, |
|
or exploitation of a resident or client, contact or consult with an |
|
administrator, employee, resident, client, family member of a |
|
resident or client, expert, or other individual in the course of the |
|
investigation or to secure information. |
|
(d) Notwithstanding any other provision of this chapter, |
|
the independent ombudsman may not investigate an alleged criminal |
|
offense or the alleged abuse, neglect, or exploitation of a |
|
resident or client. |
|
Sec. 555.060. RETALIATION PROHIBITED. The department or a |
|
center may not retaliate against a department employee, center |
|
employee, or any other person who in good faith makes a complaint to |
|
the office of independent ombudsman or cooperates with the office |
|
in an investigation. |
|
Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall |
|
establish a permanent, toll-free number for the purpose of |
|
receiving any information concerning the violation of a right of a |
|
resident or client. |
|
(b) The office shall ensure that: |
|
(1) the toll-free number is prominently displayed in |
|
the main administration area and other appropriate common areas of |
|
a center; and |
|
(2) a resident, a client, the legally authorized |
|
representative of a resident or client, and a center employee have |
|
confidential access to a telephone for the purpose of calling the |
|
toll-free number. |
|
[Sections 555.062-555.100 reserved for expansion] |
|
SUBCHAPTER D. INSPECTOR GENERAL DUTIES |
|
Sec. 555.101. ASSISTING LAW ENFORCEMENT AGENCIES WITH |
|
CERTAIN INVESTIGATIONS. The inspector general shall employ and |
|
commission peace officers for the purpose of assisting a state or |
|
local law enforcement agency in the investigation of an alleged |
|
criminal offense involving a resident or client of a center. A |
|
peace officer employed and commissioned by the inspector general is |
|
a peace officer for purposes of Article 2.12, Code of Criminal |
|
Procedure. |
|
Sec. 555.102. SUMMARY REPORT. (a) The inspector general |
|
shall prepare a summary report for each investigation conducted |
|
with the assistance of the inspector general under this subchapter. |
|
The inspector general shall ensure that the report does not contain |
|
personally identifiable information of an individual mentioned in |
|
the report. |
|
(b) The summary report must include: |
|
(1) a summary of the activities performed during an |
|
investigation for which the inspector general provided assistance; |
|
(2) a statement regarding whether the investigation |
|
resulted in a finding that an alleged criminal offense was |
|
committed; and |
|
(3) a description of the alleged criminal offense that |
|
was committed. |
|
(c) The inspector general shall deliver the summary report |
|
to the: |
|
(1) executive commissioner; |
|
(2) commissioner of the department; |
|
(3) commissioner of the Department of Family and |
|
Protective Services; |
|
(4) Aging and Disability Services Council; |
|
(5) governor; |
|
(6) lieutenant governor; |
|
(7) speaker of the house of representatives; |
|
(8) standing committees of the senate and house of |
|
representatives with primary jurisdiction over centers; |
|
(9) state auditor; |
|
(10) the independent ombudsman and the assistant |
|
ombudsman for the center involved in the report; and |
|
(11) the alleged victim or the alleged victim's |
|
legally authorized representative. |
|
(d) A summary report regarding an investigation is subject |
|
to required disclosure under Chapter 552, Government Code. All |
|
information and materials compiled by the inspector general in |
|
connection with an investigation are confidential, and not subject |
|
to disclosure under Chapter 552, Government Code, and not subject |
|
to disclosure, discovery, subpoena, or other means of legal |
|
compulsion for their release to anyone other than the inspector |
|
general or the inspector general's employees or agents involved in |
|
the investigation, except that this information may be disclosed to |
|
the Department of Family and Protective Services, the office of the |
|
attorney general, the state auditor's office, and law enforcement |
|
agencies. |
|
Sec. 555.103. ANNUAL STATUS REPORT. (a) The inspector |
|
general shall prepare an annual status report of the inspector |
|
general's activities under this subchapter. The annual report may |
|
not contain personally identifiable information of an individual |
|
mentioned in the report. |
|
(b) The annual status report must include information that |
|
is aggregated and disaggregated by individual center regarding: |
|
(1) the number and type of investigations conducted |
|
with the assistance of the inspector general; |
|
(2) the number and type of investigations involving a |
|
center employee; |
|
(3) the relationship of an alleged victim to an |
|
alleged perpetrator, if any; |
|
(4) the number of investigations conducted that |
|
involve the suicide, death, or hospitalization of an alleged |
|
victim; and |
|
(5) the number of completed investigations in which |
|
commission of an alleged offense was confirmed or unsubstantiated |
|
or in which the investigation was inconclusive, and a description |
|
of the reason that allegations were unsubstantiated or the |
|
investigation was inconclusive. |
|
(c) The inspector general shall submit the annual status |
|
report to the: |
|
(1) executive commissioner; |
|
(2) commissioner of the department; |
|
(3) commissioner of the Department of Family and |
|
Protective Services; |
|
(4) Aging and Disability Services Council; |
|
(5) Family and Protective Services Council; |
|
(6) governor; |
|
(7) lieutenant governor; |
|
(8) speaker of the house of representatives; |
|
(9) standing committees of the senate and house of |
|
representatives with primary jurisdiction over centers; |
|
(10) state auditor; and |
|
(11) comptroller. |
|
(d) An annual status report submitted under this section is |
|
public information under Chapter 552, Government Code. |
|
Sec. 555.104. RETALIATION PROHIBITED. The department or a |
|
center may not retaliate against a department employee, a center |
|
employee, or any other person who in good faith cooperates with the |
|
inspector general under this subchapter. |
|
SECTION 23. Section 40.001, Human Resources Code, is |
|
amended by adding Subdivision (6) to read as follows: |
|
(6) "State supported living center" has the meaning |
|
assigned by Section 531.002, Health and Safety Code. |
|
SECTION 24. Subsection (b), Section 40.0315, Human |
|
Resources Code, is amended to read as follows: |
|
(b) An investigator in the unit shall determine whether an |
|
elderly or disabled person who is the subject of a report made under |
|
Section 48.051(a) may have suffered from abuse, neglect, or |
|
exploitation as a result of the criminal conduct of another |
|
person. If the investigator determines that criminal conduct may |
|
have occurred, the investigator shall immediately notify: |
|
(1) the commission's office of inspector general if |
|
the disabled person who is the subject of the report resides in a |
|
state supported living center or the ICF-MR component of the Rio |
|
Grande State Center; or |
|
(2) the appropriate law enforcement agency. |
|
SECTION 25. Subchapter A, Chapter 48, Human Resources Code, |
|
is amended by adding Section 48.007 to read as follows: |
|
Sec. 48.007. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN |
|
ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The Health and |
|
Human Services Commission, the department, the Department of Aging |
|
and Disability Services, the office of independent ombudsman for |
|
state supported living centers, and the Health and Human Services |
|
Commission's office of inspector general shall enter into a |
|
memorandum of understanding regarding investigations of alleged |
|
abuse, neglect, or exploitation of residents or clients of state |
|
supported living centers or the ICF-MR component of the Rio Grande |
|
State Center that delineates the responsibilities of each agency |
|
under this chapter, Chapter 261, Family Code, and Chapter 555, |
|
Health and Safety Code, and amend the memorandum of understanding |
|
as necessary to reflect changes in those responsibilities. During |
|
the negotiation of the memorandum of understanding, the agencies |
|
shall jointly determine whether the forensic training received by |
|
relevant staff of the Department of Family and Protective Services |
|
is adequate. Specifically, the agencies shall assess and, if |
|
necessary, develop a plan to enhance the ability of department |
|
staff to identify and report incidences that constitute a potential |
|
criminal offense. The Health and Human Services Commission is the |
|
final arbiter of any dispute regarding the memorandum of |
|
understanding under this section. |
|
SECTION 26. Subsections (a) and (b), Section 48.051, Human |
|
Resources Code, are amended to read as follows: |
|
(a) Except as prescribed by Subsection (b), a person having |
|
cause to believe that an elderly or disabled person is in the state |
|
of abuse, neglect, or exploitation, including a disabled person |
|
receiving services as described by Section 48.252, shall report the |
|
information required by Subsection (d) immediately to the |
|
department. |
|
(b) If a person has cause to believe that an elderly or |
|
disabled person, other than a disabled person receiving services as |
|
described by Section 48.252, has been abused, neglected, or |
|
exploited in a facility operated, licensed, certified, or |
|
registered by a state agency [other than the Texas Department of
|
|
Mental Health and Mental Retardation], the person shall report the |
|
information to the state agency that operates, licenses, certifies, |
|
or registers the facility for investigation by that agency. |
|
SECTION 27. Subsection (a), Section 48.052, Human Resources |
|
Code, is amended to read as follows: |
|
(a) A person commits an offense if the person has cause to |
|
believe that an elderly or disabled person has been abused, |
|
neglected, or exploited or is in the state of abuse, neglect, or |
|
exploitation and knowingly fails to report in accordance with this |
|
chapter. An offense under this subsection is a Class A misdemeanor, |
|
except that the offense is a state jail felony if it is shown on the |
|
trial of the offense that the disabled person was a person with |
|
mental retardation who resided in a state supported living center, |
|
the ICF-MR component of the Rio Grande State Center, or a facility |
|
licensed under Chapter 252, Health and Safety Code, and the actor |
|
knew that the disabled person had suffered serious bodily injury as |
|
a result of the abuse, neglect, or exploitation. |
|
SECTION 28. Section 48.1522, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.1522. REPORTS OF CRIMINAL CONDUCT TO LAW |
|
ENFORCEMENT AGENCY. (a) Except as provided by Subsection (b), if |
|
[If] during the course of the department's or another state agency's |
|
investigation of reported abuse, neglect, or exploitation a |
|
caseworker of the department or other state agency, as applicable, |
|
or the caseworker's supervisor has cause to believe that the |
|
elderly or disabled person 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 |
|
or supervisor shall: |
|
(1) immediately notify an appropriate law enforcement |
|
agency; and |
|
(2) provide the law enforcement agency with a copy of |
|
the investigation report of the department or other state agency, |
|
as applicable, in a timely manner. |
|
(b) If during the course of the department's investigation |
|
of reported abuse, neglect, or exploitation a caseworker of the |
|
department or the caseworker's supervisor has cause to believe that |
|
a disabled person who is a resident or client of a state supported |
|
living center or the ICF-MR component of the Rio Grande State Center |
|
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 office of inspector general and promptly provide |
|
the commission's office of inspector general with a copy of the |
|
department's investigation report. |
|
SECTION 29. The heading to Subchapter F, Chapter 48, Human |
|
Resources Code, is amended to read as follows: |
|
SUBCHAPTER F. INVESTIGATIONS IN CERTAIN [TDMHMR] FACILITIES, |
|
COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND MENTAL RETARDATION |
|
[MHMR] AUTHORITIES |
|
SECTION 30. Section 48.252, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.252. INVESTIGATION OF REPORTS IN CERTAIN [MHMR] |
|
FACILITIES AND IN COMMUNITY CENTERS. (a) The department shall |
|
receive and investigate reports of the abuse, neglect, or |
|
exploitation of an individual with a disability receiving services: |
|
(1) in: |
|
(A) a mental health facility operated by the |
|
[Texas] Department of State [Mental] Health Services [and Mental
|
|
Retardation]; or |
|
(B) a facility licensed under Chapter 252, Health |
|
and Safety Code; |
|
(2) in or from a community center, a local mental |
|
health authority, or a local mental retardation authority; or |
|
(3) through a program providing services to that |
|
person by contract with a mental health facility operated by the |
|
[Texas] Department of State [Mental] Health Services [and Mental
|
|
Retardation], a community center, a local mental health authority, |
|
or a local mental retardation authority. |
|
(b) The department shall receive and shall investigate |
|
reports of the abuse, neglect, or exploitation of an individual |
|
with a disability receiving services: |
|
(1) in a state supported living center or the ICF-MR |
|
component of the Rio Grande State Center; or |
|
(2) through a program providing services to that |
|
person by contract with a state supported living center or the |
|
ICF-MR component of the Rio Grande State Center. |
|
(c) The department by rule shall define who is "an |
|
individual with a disability receiving services." |
|
(d) [(c)] In this section, "community center," "local |
|
mental health authority," and "local mental retardation authority" |
|
have the meanings assigned by Section 531.002, Health and Safety |
|
Code. |
|
SECTION 31. Section 48.254, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.254. FORWARDING OF CERTAIN REPORTS [COMPLETED
|
|
INVESTIGATION REPORT]. In accordance with department rules, the |
|
[The] department shall forward a copy of the initial intake report |
|
and a copy of the completed investigation report relating to |
|
alleged or suspected abuse, neglect, or exploitation to the |
|
appropriate [a state mental health or mental retardation] facility, |
|
[a] community center, [a] mental health authority, [a] mental |
|
retardation authority, or [a] program providing mental health or |
|
mental retardation services under contract with the [such a] |
|
facility, community center, or authority[:
|
|
[(1)
a copy of any report the department receives
|
|
relating to alleged or suspected abuse, neglect, or exploitation of
|
|
an individual receiving services from that facility, community
|
|
center, authority, or program; and
|
|
[(2)
a copy of the department's investigation findings
|
|
and report]. |
|
SECTION 32. Section 48.255, Human Resources Code, is |
|
amended by amending Subsections (a), (b), (c), and (d) and adding |
|
Subsection (c-1) to read as follows: |
|
(a) The department, the Department of Aging and Disability |
|
Services, and the [Texas] Department of State [Mental] Health |
|
Services [and Mental Retardation] shall develop joint rules to |
|
facilitate investigations in state mental health facilities and |
|
state supported living centers [mental retardation facilities]. |
|
(b) The department, the Department of Aging and Disability |
|
Services, and the [Texas] Department of State [Mental] Health |
|
Services [and Mental Retardation] by joint rules shall establish |
|
procedures for resolving disagreements between the department and |
|
the [Texas] Department of Aging and Disability Services or the |
|
Department of State [Mental] Health Services [and Mental
|
|
Retardation] concerning the department's investigation findings. |
|
(c) The department, the Department of Aging and Disability |
|
Services, and the [Texas] Department of State [Mental] Health |
|
Services [and Mental Retardation] shall develop joint rules to |
|
facilitate investigations in community centers, mental health |
|
authorities, and mental retardation authorities. |
|
(c-1) The executive commissioner shall adopt rules |
|
regarding investigations in a facility licensed under Chapter 252, |
|
Health and Safety Code, to ensure that those investigations are as |
|
consistent as practicable with other investigations conducted |
|
under this subchapter. |
|
(d) A confirmed investigation finding by the department may |
|
not be changed by a superintendent of a state mental health [or
|
|
mental retardation] facility, by a director of a state supported |
|
living center, by a director of a community center, or by a mental |
|
health authority or mental retardation authority. |
|
SECTION 33. Section 48.256, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND |
|
INVESTIGATIONS. (a) The department, [and] the [Texas] Department |
|
of Aging and Disability Services, and the Department of State |
|
[Mental] Health Services [and Mental Retardation] shall jointly |
|
develop and implement a single system to track reports and |
|
investigations under this subchapter [section]. |
|
(b) To facilitate implementation of the system, the |
|
department, [and] the [Texas] Department of Aging and Disability |
|
Services, and the Department of State [Mental] Health Services [and
|
|
Mental Retardation] shall use appropriate methods of measuring the |
|
number and outcome of reports and investigations under this |
|
subchapter [section]. |
|
SECTION 34. Subsections (a) and (c), Section 48.301, Human |
|
Resources Code, are amended to read as follows: |
|
(a) If the department receives a report of suspected abuse, |
|
neglect, or exploitation of [under this section relating to] an |
|
elderly or disabled person, other than a disabled person receiving |
|
services as described by Section 48.252, in a facility operated, |
|
licensed, certified, or registered by a state agency [other than
|
|
the Texas Department of Mental Health and Mental Retardation], the |
|
department shall refer the report to that agency. |
|
(c) Each state agency that may receive reports under this |
|
section[, other than the Texas Department of Mental Health and
|
|
Mental Retardation, that operates, licenses, certifies, or
|
|
registers a facility in which elderly or disabled persons are
|
|
located] shall adopt rules relating to the investigation and |
|
resolution of reports received under this section. |
|
SECTION 35. Subdivisions (1) and (4), Section 48.401, Human |
|
Resources Code, are amended to read as follows: |
|
(1) "Agency" means: |
|
(A) an entity licensed under Chapter 142, Health |
|
and Safety Code; [or] |
|
(B) a person exempt from licensing under Section |
|
142.003(a)(19), Health and Safety Code; or |
|
(C) a facility licensed under Chapter 252, Health |
|
and Safety Code. |
|
(4) "Executive director" means the commissioner |
|
[executive director] of the Department of Family and Protective |
|
[and Regulatory] Services. |
|
SECTION 36. Subchapter C, Chapter 161, Human Resources |
|
Code, is amended by adding Section 161.0515 to read as follows: |
|
Sec. 161.0515. ASSISTANT COMMISSIONER OF STATE SUPPORTED |
|
LIVING CENTERS. (a) The commissioner shall employ an assistant |
|
commissioner of state supported living centers. The assistant |
|
commissioner must be selected based on education, training, |
|
experience, and demonstrated ability. |
|
(b) The assistant commissioner reports directly to the |
|
commissioner. |
|
(c) The assistant commissioner shall supervise the |
|
operation of the state supported living centers. As part of that |
|
duty, the assistant commissioner shall: |
|
(1) verify that quality health and medical services |
|
are being provided in state supported living centers; |
|
(2) verify and certify employee qualifications for |
|
employees of a state supported living center; and |
|
(3) work with the commissioner to create |
|
administrative guidelines for proper implementation of federal and |
|
state statutory law and judicial decisions. |
|
(d) The assistant commissioner shall coordinate with the |
|
appropriate staff of the Department of State Health Services to |
|
ensure that the ICF-MR component of the Rio Grande State Center |
|
implements and enforces state law and rules that apply to the |
|
operation of state supported living centers. |
|
(e) The assistant commissioner shall consult with the |
|
appropriate staff at the Department of State Health Services to |
|
ensure that an individual with a dual diagnosis of mental illness |
|
and mental retardation who is a resident of a state supported living |
|
center or the ICF-MR component of the Rio Grande State Center is |
|
provided with appropriate care and treatment. |
|
SECTION 37. Subchapter D, Chapter 161, Human Resources |
|
Code, is amended by adding Sections 161.076 and 161.077 to read as |
|
follows: |
|
Sec. 161.076. ON-SITE SURVEYS OF CERTAIN PROVIDERS. At |
|
least every 12 months, the department shall conduct an unannounced |
|
on-site survey in each group home, other than a foster home, at |
|
which a Home and Community-based Services (HCS) provider provides |
|
services. |
|
Sec. 161.077. INVESTIGATION DATABASE. (a) The |
|
department, in consultation with the Department of Family and |
|
Protective Services, shall develop and maintain an electronic |
|
database to collect and analyze information regarding the |
|
investigation and prevention of abuse, neglect, and exploitation of |
|
individuals with mental retardation who reside in a publicly or |
|
privately operated intermediate care facility for persons with |
|
mental retardation or in a group home, other than a foster home, at |
|
which a Home and Community-based Services (HCS) provider provides |
|
services and the results of regulatory investigations or surveys |
|
performed by the department regarding those facilities or |
|
providers. |
|
(b) The information collected in the database regarding |
|
investigations must be detailed, be easily retrievable, and include |
|
information relating to abuse, neglect, and exploitation |
|
investigations performed by either department and regulatory |
|
investigations performed by the department that are capable of |
|
being sorted by home, provider, and facility. |
|
(c) The database must facilitate the entry of required |
|
information and the sharing of information between the department |
|
and the Department of Family and Protective Services. At a minimum, |
|
the database must include the following information regarding |
|
investigations of abuse, neglect, or exploitation: |
|
(1) the number of allegations of abuse, neglect, or |
|
exploitation received relating to a facility or group home, other |
|
than a foster home; and |
|
(2) the number of allegations relating to a facility |
|
or group home, other than a foster home, substantiated through an |
|
investigation. |
|
(d) Each allegation involving a unique individual in a |
|
facility or group home, other than a foster home, is considered a |
|
separate allegation for purposes of Subsection (c). |
|
(e) The department shall ensure that information related to |
|
findings concerning failure to comply with regulatory standards |
|
directly related to the prevention of abuse, neglect, or |
|
exploitation in a facility or group home, other than a foster home, |
|
is collected and stored in the database and may be disaggregated by |
|
home, provider, and facility. |
|
(f) The department and the Department of Family and |
|
Protective Services may not release or distribute information in |
|
the database in a form that contains personally identifiable |
|
information related to an individual in a facility or group home or |
|
to a victim of abuse, neglect, or exploitation. |
|
SECTION 38. Subsection (f), Section 22.04, Penal Code, is |
|
amended to read as follows: |
|
(f) An offense under Subsection (a)(3) or (a-1)(3) or (4) is |
|
a felony of the third degree when the conduct is committed |
|
intentionally or knowingly, except that an offense under Subsection |
|
(a)(3) is a felony of the second degree when the conduct is |
|
committed intentionally or knowingly and the victim is a disabled |
|
individual residing in a center, as defined by Section 555.001, |
|
Health and Safety Code, or in a facility licensed under Chapter 252, |
|
Health and Safety Code, and the actor is an employee of the center |
|
or facility whose employment involved providing direct care for the |
|
victim. When the conduct is engaged in recklessly, the offense is |
|
a state jail felony. |
|
SECTION 39. (a) Sections 252.123, 252.124, 252.127, |
|
252.128, 252.129, 252.130, and 252.131, Health and Safety Code, are |
|
repealed. |
|
(b) Subsection (c), Section 5, Chapter 693 (S.B. 1248), Acts |
|
of the 75th Legislature, Regular Session, 1997, is repealed. |
|
SECTION 40. The changes in law made by Article 38.072, Code |
|
of Criminal Procedure, as amended by this Act, and Section 54.031, |
|
Family Code, as amended by this Act, apply only to a criminal |
|
proceeding that commences on or after the effective date of this |
|
Act. A criminal proceeding that commences before the effective |
|
date of this Act is governed by the law in effect when the |
|
proceeding commenced, and the former law is continued in effect for |
|
that purpose. |
|
SECTION 41. Subchapter L, Chapter 29, Education Code, as |
|
added by this Act, applies beginning with the school year in which |
|
the Department of Aging and Disability Services begins operating |
|
the Mexia State Supported Living Center as the forensic state |
|
supported living center as required by Section 555.002, Health and |
|
Safety Code, as added by this Act. |
|
SECTION 42. (a) Not later than December 1, 2009, the |
|
Health and Human Services Commission, the Department of Family and |
|
Protective Services, the Department of Aging and Disability |
|
Services, the office of independent ombudsman for state supported |
|
living centers, and the Health and Human Services Commission's |
|
office of inspector general shall enter into a memorandum of |
|
understanding as required by Section 48.007, Human Resources Code, |
|
as added by this Act. |
|
(b) Notwithstanding any other provision of this Act, the |
|
changes in law made by this Act relating to the investigation of |
|
suspected abuse, neglect, or exploitation involving a state |
|
supported living center or the ICF-MR component of the Rio Grande |
|
State Center apply only to a report of suspected abuse, neglect, or |
|
exploitation involving a state supported living center or the |
|
ICF-MR component of the Rio Grande State Center that is made on or |
|
after January 1, 2010. |
|
(c) Notwithstanding any other provision of this Act, the |
|
changes in law made by this Act relating to the investigation of |
|
suspected abuse, neglect, or exploitation involving a facility |
|
licensed under Chapter 252, Health and Safety Code, apply only to a |
|
report of suspected abuse, neglect, or exploitation involving a |
|
facility licensed under Chapter 252, Health and Safety Code, that |
|
is made on or after June 1, 2010. |
|
SECTION 43. (a) The Interim Select Committee on Criminal |
|
Commitments of Individuals with Mental Retardation is established |
|
to study the criminal commitment process for individuals with |
|
mental retardation who are found incompetent to stand trial or are |
|
acquitted by reason of insanity. The committee's study must |
|
include an analysis of: |
|
(1) the advantages and disadvantages of the existing |
|
system for criminal commitments of individuals with mental |
|
retardation or individuals with a dual diagnosis of mental illness |
|
and mental retardation who are found incompetent to stand trial or |
|
are acquitted by reason of insanity; |
|
(2) the number of individuals with mental retardation |
|
who are criminally committed on an annual basis and the number of |
|
individuals with mental retardation who are found to be violent or |
|
dangerous through the criminal commitment process; |
|
(3) whether the criminal commitment process should be |
|
modified to provide for the commitment of certain individuals with |
|
mental retardation who are found to be violent or dangerous to a |
|
mental retardation facility instead of to a mental health facility; |
|
and |
|
(4) the costs associated with modifying the criminal |
|
commitment process as described by Subdivision (3) of this |
|
subsection. |
|
(b) The committee is composed of six members as follows: |
|
(1) the chairs of the following standing committees of |
|
the house of representatives: |
|
(A) criminal jurisprudence; |
|
(B) human services; and |
|
(C) public health; and |
|
(2) the chairs of the following standing committees of |
|
the senate: |
|
(A) criminal justice; |
|
(B) health and human services; and |
|
(C) state affairs. |
|
(c) The co-presiding officers of the committee are the chair |
|
of the Senate Committee on Health and Human Services and the chair |
|
of the House Committee on Human Services. |
|
(d) The committee has all other powers and duties provided |
|
to a special or select committee by the rules of the senate and |
|
house of representatives, by Subchapter B, Chapter 301, Government |
|
Code, and by policies of the senate and house committees on |
|
administration. |
|
(e) From the contingent expense fund of the senate and the |
|
contingent expense fund of the house of representatives equally, |
|
the members of the committee are entitled to reimbursement for |
|
expenses incurred in carrying out this section in accordance with |
|
the rules of the senate and house of representatives and the |
|
policies of the senate and house committees on administration. |
|
(f) Not later than December 1, 2010, the committee shall |
|
report the committee's findings and recommendations resulting from |
|
the study to the governor, lieutenant governor, speaker of the |
|
house of representatives, and members of the legislature. |
|
SECTION 44. The Department of Aging and Disability Services |
|
shall evaluate and determine the types of training that an employee |
|
or owner of a facility licensed by the department under Chapter 252, |
|
Health and Safety Code, or an employee or owner of a provider |
|
licensed or certified by the department as a Section 1915(c) waiver |
|
program provider needs and whether that training is available. Not |
|
later than December 1, 2010, the department shall provide a report |
|
to the governor, lieutenant governor, speaker of the house of |
|
representatives, and chairs of the standing committees of the |
|
senate and house of representatives with primary jurisdiction |
|
regarding persons with mental retardation regarding: |
|
(1) the types of training required by federal law; |
|
(2) the types of training identified as necessary by |
|
the department; |
|
(3) the availability of that training in this state; |
|
and |
|
(4) recommended legislation or actions necessary to |
|
ensure the appropriate training is received by the persons |
|
described by this section. |
|
SECTION 45. On the effective date of this Act, an individual |
|
who is an employee of the Department of Aging and Disability |
|
Services and who performs duties primarily related to consumer |
|
rights and services at state schools is required to reapply for an |
|
employment position with the department and may apply for a |
|
position as an assistant independent ombudsman. |
|
SECTION 46. (a) The commissioner of the Department of |
|
Aging and Disability Services shall employ an assistant |
|
commissioner of state supported living centers as soon as possible |
|
after the effective date of Section 161.0515, Human Resources Code, |
|
as added by this Act. On the date the assistant commissioner is |
|
employed, the position of section director over state schools is |
|
eliminated. |
|
(b) As soon as practicable after the effective date of this |
|
Act, the Department of Aging and Disability Services shall develop |
|
the database required by Section 161.077, Human Resources Code, as |
|
added by this Act. |
|
(c) Not later than December 1, 2009, the Health and Human |
|
Services Commission's office of inspector general shall begin |
|
employing and commissioning peace officers as required by Section |
|
555.101, Health and Safety Code, as added by this Act. |
|
(d) Not later than December 1, 2009, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
contract for mortality review services as required by Subchapter U, |
|
Chapter 531, Government Code, as added by this Act. |
|
(e) Not later than September 1, 2009, the governor shall |
|
appoint the independent ombudsman as required by Section 555.053, |
|
Health and Safety Code, as added by this Act. |
|
(f) Not later than September 1, 2010, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
require the Department of Aging and Disability Services, and any |
|
facility the department licenses under Chapter 252, Health and |
|
Safety Code, to conduct a criminal history check on each employee |
|
and shall require the department or licensed facility to discharge |
|
any person whose criminal history check reveals a conviction of an |
|
offense that bars employment under Chapter 250, Health and Safety |
|
Code. |
|
(g) Not later than January 1, 2010, the Department of Aging |
|
and Disability Services shall develop the training required by |
|
Section 555.024, Health and Safety Code, as added by this Act. |
|
(h) The Department of Aging and Disability Services shall |
|
ensure that each center employee and direct care employee receives |
|
the training required by Section 555.024, Health and Safety Code, |
|
as added by this Act, regardless of when the employee was hired, not |
|
later than September 1, 2010. |
|
(i) Not later than September 1, 2011, the Department of |
|
Aging and Disability Services shall begin operating the Mexia State |
|
Supported Living Center as the forensic state supported living |
|
center as required by Section 555.002, Health and Safety Code, as |
|
added by this Act. |
|
SECTION 47. (a) Not later than September 1, 2011, the |
|
Department of Aging and Disability Services shall ensure that an |
|
interdisciplinary team has completed a determination in the manner |
|
provided by Section 555.003, Health and Safety Code, as added by |
|
this Act, for each alleged offender resident residing in a state |
|
supported living center or the ICF-MR component of the Rio Grande |
|
State Center on the effective date of this Act. |
|
(b) An alleged offender resident for whom a determination is |
|
completed in accordance with Subsection (a) of this section and who |
|
is classified as a high-risk alleged offender resident is entitled |
|
to: |
|
(1) an administrative hearing and appeal provided by |
|
Section 555.003, Health and Safety Code, as added by this Act, |
|
regarding that determination and classification; and |
|
(2) an administrative hearing regarding the resident's |
|
proposed transfer to the forensic state supported living center as |
|
provided by Section 594.014, Health and Safety Code. |
|
(c) The Department of Aging and Disability Services may not |
|
transfer an alleged offender resident residing in a state supported |
|
living center or the ICF-MR component of the Rio Grande State Center |
|
on the effective date of this Act to the forensic state supported |
|
living center while the resident is pursuing the administrative |
|
remedies listed in Subsection (b) of this section. |
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(d) Except as provided by Subsection (c) of this section, |
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the Department of Aging and Disability Services shall transfer an |
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alleged offender resident classified as a high-risk alleged |
|
offender resident to the forensic state supported living center on |
|
the date the Mexia State Supported Living Center begins operating |
|
as the forensic state supported living center, or as soon as |
|
possible after that date. |
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(e) This section expires September 1, 2013. |
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SECTION 48. (a) The changes in law made by this Act to |
|
Section 261.109, Family Code, Section 48.052, Human Resources Code, |
|
and Section 22.04, Penal Code, apply only to an offense committed on |
|
or after the effective date of this Act. An offense committed |
|
before the effective date of this Act is governed by the law in |
|
effect when the offense was committed, and the former law is |
|
continued in effect for that purpose. For purposes of this section, |
|
an offense was committed before the effective date of this Act if |
|
any element of the offense occurred before that date. |
|
(b) Section 411.1144, Government Code, as added by this Act, |
|
and Section 555.021, Health and Safety Code, as added by this Act, |
|
apply only to background and criminal history checks performed on |
|
or after the effective date of this Act. |
|
(c) The change in law made by Subsection (e), Section |
|
551.022, Health and Safety Code, as added by this Act, and the |
|
change in law made by Section 551.0225, Health and Safety Code, as |
|
added by this Act, apply to the dismissal of an officer, teacher, or |
|
other employee of a state developmental center hired before, on, or |
|
after the effective date of this Act. |
|
SECTION 49. 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 50. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 643 passed the Senate on |
|
March 9, 2009, by the following vote: Yeas 30, Nays 0; and that |
|
the Senate concurred in House amendments on May 29, 2009, by the |
|
following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
|
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I hereby certify that S.B. No. 643 passed the House, with |
|
amendments, on May 19, 2009, by the following vote: Yeas 143, |
|
Nays 0, one present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |