Bill Text: TX HB1726 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to the abuse, neglect, and exploitation of recipients of home health services; providing penalties; creating an offense.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-03-06 - Referred to Human Services [HB1726 Detail]
Download: Texas-2017-HB1726-Introduced.html
85R8021 KKR-F | ||
By: Cortez | H.B. No. 1726 |
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relating to the abuse, neglect, and exploitation of recipients of | ||
home health services; providing penalties; creating an offense. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subtitle G, Title 2, Health and Safety Code, is | ||
amended by adding Chapter 142A to read as follows: | ||
CHAPTER 142A. REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF | ||
RECIPIENTS OF CERTAIN SERVICES | ||
Sec. 142A.001. DEFINITIONS. In this chapter: | ||
(1) "Abuse" means: | ||
(A) the negligent or wilful infliction of injury, | ||
unreasonable confinement, intimidation, or cruel punishment with | ||
resulting physical or emotional harm or pain to a recipient by the | ||
recipient's caregiver, family member, or other individual who has | ||
an ongoing relationship with the recipient; or | ||
(B) sexual abuse of a recipient, including any | ||
involuntary or nonconsensual sexual conduct that would constitute | ||
an offense under Section 21.08, Penal Code (Indecent Exposure), or | ||
Chapter 22, Penal Code (Assaultive Offenses), committed by the | ||
recipient's caregiver, family member, or other individual who has | ||
an ongoing relationship with the recipient. | ||
(2) "Exploitation" means the illegal or improper act | ||
or process of a caregiver, family member, or other individual who | ||
has an ongoing relationship with the recipient using the resources | ||
of a recipient for monetary or personal benefit, profit, or gain | ||
without the informed consent of the recipient. | ||
(3) "Neglect" means the failure to provide for one's | ||
self the goods or services, including medical services, that are | ||
necessary to avoid physical or emotional harm or pain or the failure | ||
of a caregiver to provide the goods or services. | ||
(4) "Recipient" means an individual, including a | ||
patient, who receives a service. | ||
(5) "Service" means a home health service as defined | ||
by Section 142.001. | ||
Sec. 142A.002. REPORTING OF ABUSE, NEGLECT, AND | ||
EXPLOITATION. (a) A person, including an employee of a person | ||
licensed under Chapter 142 to provide a service, who has cause to | ||
believe that the physical or mental health or welfare of a recipient | ||
has been or may be adversely affected by abuse, neglect, or | ||
exploitation caused by another person shall report the abuse, | ||
neglect, or exploitation in accordance with this chapter. | ||
(b) Each person licensed under Chapter 142 to provide a | ||
service shall require each employee providing a service, as a | ||
condition of employment with the person, to sign a statement | ||
acknowledging that the employee may be criminally liable for | ||
failure to report the abuse, neglect, or exploitation. | ||
(c) A person shall make an oral report to the commission | ||
immediately on learning of the abuse, neglect, or exploitation and | ||
shall make a written report to the commission not later than the | ||
fifth day after the date the oral report is made. | ||
Sec. 142A.003. CONTENTS OF REPORT. (a) A report of abuse, | ||
neglect, or exploitation is nonaccusatory and reflects the | ||
reporting person's belief that a recipient has been or will be | ||
abused, neglected, or exploited or has died as a result of abuse or | ||
neglect. | ||
(b) The report must contain: | ||
(1) the name and address of the recipient; | ||
(2) the name and address of the person responsible for | ||
the care of the recipient, if available; and | ||
(3) other relevant information. | ||
(c) Except for an anonymous report made under Section | ||
142A.004, a report of abuse, neglect, or exploitation under Section | ||
142A.002 must include the address or phone number of the person | ||
making the report to enable an investigator to contact the person | ||
for any necessary additional information. The phone number, | ||
address, and name of the person making the report must be redacted | ||
from any copy of the report or information from the report that is | ||
released to the public, to the person licensed under Chapter 142 to | ||
provide a service, or to an agent of the person licensed under | ||
Chapter 142 to provide a service. | ||
Sec. 142A.004. ANONYMOUS REPORTS OF ABUSE, NEGLECT, OR | ||
EXPLOITATION. (a) The commission shall accept but discourage the | ||
submission of an anonymous report of abuse, neglect, or | ||
exploitation, and, subject to Subsection (b), act on the report in | ||
the same manner as the commission acts on an acknowledged report. | ||
(b) The commission is not required to investigate an | ||
anonymous report that accuses a named individual of abuse, neglect, | ||
or exploitation. | ||
Sec. 142A.005. TELEPHONE HOTLINE; PROCESSING OF REPORTS. | ||
(a) The commission shall operate a telephone hotline to: | ||
(1) receive reports of abuse, neglect, or exploitation | ||
under this chapter; and | ||
(2) assign investigators. | ||
(b) A person shall make a report of abuse, neglect, or | ||
exploitation to the commission's telephone hotline or to a local or | ||
state law enforcement agency. A report relating to abuse, neglect, | ||
or exploitation or another complaint alleging conduct described in | ||
Section 142A.007(c) must be made to the commission's telephone | ||
hotline and to the law enforcement agency described by Section | ||
142A.016(a). | ||
(c) Except as provided by Section 142A.016, a local or state | ||
law enforcement agency that receives a report of abuse, neglect, or | ||
exploitation shall refer the report to the commission. | ||
Sec. 142A.006. NOTICE. (a) Each person licensed under | ||
Chapter 142 to provide a service shall prominently and | ||
conspicuously post a sign for display in a public area of the | ||
person's headquarters or office that is readily available to | ||
employees and visitors. | ||
(b) The sign must include the statement: "CASES OF | ||
SUSPECTED ABUSE, NEGLECT, OR EXPLOITATION SHALL BE REPORTED TO THE | ||
TEXAS HEALTH AND HUMAN SERVICES COMMISSION BY CALLING (insert | ||
telephone hotline number)." | ||
(c) A person licensed under Chapter 142 to provide a service | ||
shall provide the telephone hotline number to an immediate family | ||
member of each recipient of services on provision of the first | ||
service to the recipient. | ||
Sec. 142A.007. INVESTIGATION AND REPORT OF COMMISSION. (a) | ||
The commission shall make a thorough investigation after receiving | ||
an oral or written report of abuse, neglect, or exploitation under | ||
Section 142A.002 or another complaint alleging abuse, neglect, or | ||
exploitation. | ||
(b) The primary purpose of the investigation is the | ||
protection of the recipient. | ||
(c) The commission shall begin the investigation: | ||
(1) within 24 hours after receipt of a report or other | ||
complaint of abuse, neglect, or exploitation alleging that: | ||
(A) a recipient's health or safety is in imminent | ||
danger; | ||
(B) a recipient has recently died because of | ||
conduct alleged in the report of abuse, neglect, or exploitation or | ||
other complaint; | ||
(C) a recipient has been hospitalized or been | ||
treated in an emergency room because of conduct alleged in the | ||
report of abuse, neglect, or exploitation or other complaint; | ||
(D) a recipient has been a victim of any act or | ||
attempted act described by Section 21.02, 21.11, 22.011, or 22.021, | ||
Penal Code; or | ||
(E) a recipient has suffered bodily injury, as | ||
defined by Section 1.07, Penal Code, because of conduct alleged in | ||
the report of abuse, neglect, or exploitation or other complaint; | ||
or | ||
(2) before the end of the next working day after the | ||
date of receipt of the report of abuse, neglect, or exploitation or | ||
other complaint if the report or complaint alleges the existence of | ||
circumstances that could result in abuse, neglect, or exploitation | ||
and that could place a recipient's health or safety in imminent | ||
danger. | ||
(d) The executive commissioner shall adopt rules governing | ||
the conduct of investigations, including procedures to ensure the | ||
complainant and the recipient, the recipient's next of kin, and any | ||
person designated to receive information concerning the recipient | ||
receive periodic information regarding the investigation. | ||
(e) In investigating a report of abuse, neglect, or | ||
exploitation or other complaint, the investigator for the | ||
commission shall: | ||
(1) make an unannounced visit to the place at which a | ||
service is provided to the recipient to determine the nature and | ||
cause of the alleged abuse, neglect, or exploitation of the | ||
recipient; | ||
(2) interview each available witness, including the | ||
recipient who suffered the alleged abuse, neglect, or exploitation | ||
if the recipient is able to communicate, or another recipient or | ||
other witness identified by any source as having personal knowledge | ||
relevant to the report of abuse, neglect, or exploitation or other | ||
complaint; | ||
(3) personally inspect any physical circumstance that | ||
is relevant and material to the report of abuse, neglect, or | ||
exploitation or other complaint and that may be objectively | ||
observed; | ||
(4) make a photographic record of any injury to a | ||
recipient, subject to Subsection (m); and | ||
(5) write an investigation report that includes: | ||
(A) the investigator's personal observations; | ||
(B) a review of relevant documents and records; | ||
(C) a summary of each witness statement, | ||
including the statement of the recipient who suffered the alleged | ||
abuse, neglect, or exploitation and any other recipient interviewed | ||
in the investigation; and | ||
(D) a statement of the factual basis for the | ||
findings for each incident or problem alleged in the report or other | ||
allegation. | ||
(f) An investigator shall conduct an interview under | ||
Subsection (e) in private unless the witness expressly requests | ||
that the interview not be private. | ||
(g) Not later than the 30th day after the date the | ||
investigation is complete, the investigator shall prepare the | ||
written report required by Subsection (e). The commission shall | ||
make the investigation report available to the public on request | ||
after the date the commission's letter of determination is | ||
complete. The commission shall delete from any copy made available | ||
to the public: | ||
(1) the name of: | ||
(A) any recipient, unless the commission | ||
receives written authorization from a recipient or the recipient's | ||
legal representative requesting that the recipient's name be left | ||
in the report; | ||
(B) the person making the report of abuse, | ||
neglect, or exploitation or other complaint; and | ||
(C) a person interviewed in the investigation; | ||
and | ||
(2) photographs of any injury to the recipient. | ||
(h) In the investigation, the commission shall determine: | ||
(1) the nature, extent, and cause of the abuse, | ||
neglect, or exploitation; | ||
(2) the identity of the person responsible for the | ||
abuse, neglect, or exploitation; | ||
(3) the names and conditions of the other recipients; | ||
(4) an evaluation of the persons responsible for the | ||
care of the recipients; | ||
(5) the adequacy of the environment in which a service | ||
is provided; and | ||
(6) any other information required by the commission. | ||
(i) Before the completion of the investigation, the | ||
commission shall file a petition for temporary care and protection | ||
of the recipient if the commission determines the action is | ||
necessary to protect the recipient from further abuse, neglect, or | ||
exploitation. | ||
(j) The commission shall make a complete final written | ||
report of the investigation and submit the report and its | ||
recommendations to the district attorney and, if a law enforcement | ||
agency has not investigated the report of abuse, neglect, or | ||
exploitation or other complaint, to the appropriate law enforcement | ||
agency. | ||
(k) Within 24 hours after receipt of a report of abuse, | ||
neglect, or exploitation or other complaint described by Subsection | ||
(c)(1), the commission shall report the report or complaint to the | ||
law enforcement agency described by Section 142A.016(a). The | ||
commission shall cooperate with that law enforcement agency in the | ||
investigation of the report or complaint as described by Section | ||
142A.016. | ||
(l) The inability or unwillingness of a local law | ||
enforcement agency to conduct a joint investigation under Section | ||
142A.016 does not constitute grounds to prevent or prohibit the | ||
commission from performing its duties under this chapter. The | ||
commission shall document any instance in which a law enforcement | ||
agency is unable or unwilling to conduct a joint investigation | ||
under Section 142A.016. | ||
(m) If the commission determines that, before a | ||
photographic record of an injury to a recipient may be made under | ||
Subsection (e), consent is required under state or federal law, the | ||
investigator: | ||
(1) shall seek to obtain any required consent; and | ||
(2) may not make the photographic record unless the | ||
consent is obtained. | ||
Sec. 142A.008. CONFIDENTIALITY. A report, record, or | ||
working paper used or developed in an investigation made under this | ||
chapter and the name, address, and phone number of any person making | ||
a report under this chapter are confidential and may be disclosed | ||
only for purposes consistent with rules adopted by the executive | ||
commissioner. The report, record, or working paper and the name, | ||
address, and phone number of the person making the report shall be | ||
disclosed to a law enforcement agency as necessary to allow the law | ||
enforcement agency to investigate a report of abuse, neglect, or | ||
exploitation or other complaint in accordance with Section | ||
142A.016. | ||
Sec. 142A.009. IMMUNITY. (a) A person who makes a report | ||
as provided by this chapter is immune from civil or criminal | ||
liability that, in the absence of the immunity, might result from | ||
making the report. | ||
(b) The immunity provided by this section extends to | ||
participation in any judicial proceeding that results from the | ||
report. | ||
(c) This section does not apply to a person who makes a | ||
report in bad faith or with malice. | ||
Sec. 142A.010. PRIVILEGED COMMUNICATIONS. In a proceeding | ||
regarding the abuse, neglect, or exploitation of a recipient or the | ||
cause of any abuse, neglect, or exploitation, evidence may not be | ||
excluded on the ground of privileged communication other than a | ||
communication between an attorney and client. | ||
Sec. 142A.011. CENTRAL REGISTRY. (a) The commission shall | ||
maintain in the city of Austin a central registry of reported cases | ||
of recipient abuse, neglect, or exploitation. | ||
(b) The executive commissioner may adopt rules necessary to | ||
carry out this section. | ||
(c) The rules shall provide for cooperation with hospitals | ||
and clinics in the exchange of reports of recipient abuse, neglect, | ||
or exploitation. | ||
Sec. 142A.012. FAILURE TO REPORT; CRIMINAL PENALTY. (a) A | ||
person commits an offense if the person has cause to believe that a | ||
recipient's physical or mental health or welfare has been or may be | ||
further adversely affected by abuse, neglect, or exploitation and | ||
knowingly fails to report in accordance with Section 142A.002. | ||
(b) An offense under this section is a Class A misdemeanor. | ||
Sec. 142A.013. MALICIOUS, RECKLESS, OR BAD FAITH REPORTING; | ||
CRIMINAL PENALTY. (a) A person commits an offense if the person | ||
makes a report under this chapter maliciously, recklessly, or in | ||
bad faith. | ||
(b) An offense under this section is a Class A misdemeanor. | ||
(c) The criminal penalty provided by this section is in | ||
addition to any civil penalties for which the person may be liable. | ||
Sec. 142A.014. RETALIATION AGAINST EMPLOYEES PROHIBITED. | ||
(a) In this section, "employee" means an individual who is an | ||
employee of a person licensed under Chapter 142 to provide a service | ||
or any other individual who provides services for compensation, | ||
including a contract laborer for the person. | ||
(b) An employee has a cause of action against a person | ||
licensed under Chapter 142 to provide a service, or another | ||
employee of the person, who suspends or terminates the employment | ||
of the employee or otherwise disciplines, discriminates, or | ||
retaliates against the employee for reporting to the employee's | ||
supervisor, an administrator of the person, the commission, or a | ||
law enforcement agency a violation of law or for initiating or | ||
cooperating in any investigation or proceeding of a governmental | ||
entity relating to the provision of the service. | ||
(c) The petitioner may recover: | ||
(1) the greater of $1,000 or actual damages, including | ||
damages for mental anguish even if an injury other than mental | ||
anguish is not shown, and damages for lost wages for a petitioner | ||
whose employment was suspended or terminated; | ||
(2) exemplary damages; | ||
(3) court costs; and | ||
(4) reasonable attorney's fees. | ||
(d) In addition to the amounts that may be recovered under | ||
Subsection (c), a person whose employment is suspended or | ||
terminated is entitled to appropriate injunctive relief, | ||
including, if applicable: | ||
(1) reinstatement in the person's former position; and | ||
(2) reinstatement of lost fringe benefits or seniority | ||
rights. | ||
(e) The petitioner, not later than the 90th day after the | ||
date on which the person's employment is suspended or terminated, | ||
must bring suit or notify the Texas Workforce Commission of the | ||
petitioner's intent to sue under this section. A petitioner who | ||
notifies the Texas Workforce Commission under this subsection must | ||
bring suit not later than the 90th day after the date notice is | ||
delivered to the commission. On receipt of the notice, the | ||
commission shall notify the service of the petitioner's intent to | ||
bring suit under this section. | ||
(f) The petitioner has the burden of proof, except there is | ||
a rebuttable presumption that the person's employment was suspended | ||
or terminated for reporting abuse, neglect, or exploitation if the | ||
person is suspended or terminated within 60 days after the date the | ||
person reported the abuse, neglect, or exploitation in good faith. | ||
(g) A suit under this section may be brought in the district | ||
court of the county in which: | ||
(1) the plaintiff resides; | ||
(2) the plaintiff was employed by the defendant; or | ||
(3) the defendant conducts business. | ||
(h) Each person licensed under Chapter 142 to provide a | ||
service shall require each employee of the person, as a condition of | ||
employment, 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 142A.002. If a person | ||
licensed under Chapter 142 to provide a service does not require an | ||
employee to read and sign the statement, the periods under | ||
Subsection (e) do not apply, and the petitioner must bring suit not | ||
later than the second anniversary of the date on which the | ||
petitioner's employment is suspended or terminated. | ||
Sec. 142A.015. RETALIATION AGAINST VOLUNTEERS, RECIPIENTS, | ||
OR FAMILY MEMBERS OR GUARDIANS OF RECIPIENTS. (a) A person | ||
licensed under Chapter 142 to provide a service may not retaliate or | ||
discriminate against a volunteer, recipient, or family member or | ||
guardian of a recipient because the volunteer, recipient, family | ||
member or guardian of a recipient, or any other person: | ||
(1) makes a complaint or files a grievance concerning | ||
the person; | ||
(2) reports a violation of law; or | ||
(3) initiates or cooperates in an investigation or | ||
proceeding of a governmental entity relating to the provision of | ||
the service. | ||
(b) A volunteer, recipient, or family member or guardian of | ||
a recipient who is retaliated or discriminated against in violation | ||
of Subsection (a) is entitled to sue for: | ||
(1) injunctive relief; | ||
(2) the greater of $1,000 or actual damages, including | ||
damages for mental anguish even if an injury other than mental | ||
anguish is not shown; | ||
(3) exemplary damages; | ||
(4) court costs; and | ||
(5) reasonable attorney's fees. | ||
(c) A volunteer, recipient, or family member or guardian of | ||
a recipient who seeks relief under this section must report the | ||
alleged violation not later than the 180th day after the date the | ||
alleged violation of this section occurred or was discovered by the | ||
volunteer, recipient, or family member or guardian of the recipient | ||
through reasonable diligence. | ||
(d) A suit under this section may be brought in the district | ||
court of the county in which the service is located or in a district | ||
court of Travis County. | ||
Sec. 142A.016. DUTIES OF LAW ENFORCEMENT; JOINT | ||
INVESTIGATION. (a) The commission shall investigate a report of | ||
abuse, neglect, or exploitation or other complaint described by | ||
Section 142A.007(c)(1) jointly with: | ||
(1) the municipal law enforcement agency, if the | ||
service is provided at a location within the territorial boundaries | ||
of a municipality; or | ||
(2) the sheriff's department of the county in which the | ||
service is provided, if the service is not provided at a location | ||
within the territorial boundaries of a municipality. | ||
(b) The law enforcement agency described by Subsection (a) | ||
shall acknowledge the report of abuse, neglect, or exploitation or | ||
other complaint and begin the joint investigation required by this | ||
section within 24 hours after receipt of the report or complaint. | ||
The law enforcement agency shall cooperate with the commission and | ||
report to the commission the results of the investigation. | ||
(c) The requirement that the law enforcement agency and the | ||
commission conduct a joint investigation under this section does | ||
not require that a representative of each agency be physically | ||
present during all phases of the investigation or that each agency | ||
participate equally in each activity conducted in the course of the | ||
investigation. | ||
SECTION 2. Section 142.009, Health and Safety Code, is | ||
amended by amending Subsection (c) and adding Subsection (c-1) to | ||
read as follows: | ||
(c) Except as provided by Subsection (c-1), the commission | ||
[ |
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investigate each complaint received regarding the provision of home | ||
health, hospice, habilitation, or personal assistance services and | ||
may, as a part of the investigation: | ||
(1) conduct an unannounced survey of a place of | ||
business, including an inspection of medical and personnel records, | ||
if the commission [ |
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the place of business is in violation of this chapter or a rule | ||
adopted under this chapter; | ||
(2) conduct an interview with a recipient of home | ||
health, hospice, habilitation, or personal assistance services, | ||
which may be conducted in the recipient's home if the recipient | ||
consents; | ||
(3) conduct an interview with a family member of a | ||
recipient of home health, hospice, habilitation, or personal | ||
assistance services who is deceased or other person who may have | ||
knowledge of the care received by the deceased recipient of the home | ||
health, hospice, habilitation, or personal assistance services; or | ||
(4) interview a physician or other health care | ||
practitioner, including a member of the personnel of a home and | ||
community support services agency, who cares for a recipient of | ||
home health, hospice, habilitation, or personal assistance | ||
services. | ||
(c-1) A complaint that constitutes a report of abuse, | ||
neglect, or exploitation in connection with the provision of a home | ||
health service is governed by Chapter 142A. | ||
SECTION 3. Section 142.018, Health and Safety Code, is | ||
repealed. | ||
SECTION 4. The change in law made by this Act applies only | ||
to a licensing action under Chapter 142, Health and Safety Code, for | ||
conduct that occurs on or after the effective date of this Act. | ||
Conduct that occurs before the effective date of this Act is | ||
governed by the law as it existed on the date the conduct occurred, | ||
and the former law is continued in effect for that purpose. | ||
SECTION 5. This Act takes effect September 1, 2017. |