Bill Text: TX HB916 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to requiring financial institutions to report the suspected financial abuse of elderly persons; providing a civil and criminal penalty.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-02-21 - Referred to Investments & Financial Services [HB916 Detail]
Download: Texas-2017-HB916-Introduced.html
85R6383 EES-F | ||
By: Thierry | H.B. No. 916 |
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relating to requiring financial institutions to report the | ||
suspected financial abuse of elderly persons; providing a civil and | ||
criminal penalty. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subtitle Z, Title 3, Finance Code, is amended by | ||
adding Chapter 280 to read as follows: | ||
CHAPTER 280. REPORTING OF FINANCIAL ABUSE OF ELDERLY PERSONS | ||
Sec. 280.001. DEFINITIONS. (a) In this chapter: | ||
(1) "Adult protective services division" means the | ||
adult protective services division of the Department of Family and | ||
Protective Services. | ||
(2) "Elderly person" has the meaning assigned by | ||
Section 48.002, Human Resources Code. | ||
(3) "Finance commission" means the Finance Commission | ||
of Texas. | ||
(4) "Financial abuse" means the wrongful or negligent | ||
taking, appropriation, obtaining, retention, or use of or assisting | ||
in the wrongful or negligent taking, appropriation, obtaining, | ||
retention, or use of the property of an elderly person by any means, | ||
including by exerting undue influence. The term includes financial | ||
exploitation. | ||
(5) "Financial exploitation" means the wrongful or | ||
negligent taking, appropriation, obtaining, retention, or use of | ||
the money or other property of an elderly person by a person who has | ||
a relationship of confidence or trust with the elderly person. | ||
Financial exploitation may involve coercion, manipulation, | ||
threats, intimidation, misrepresentation, or the exerting of undue | ||
influence. The term includes: | ||
(A) the breach of a fiduciary relationship, | ||
including the misuse of a durable power of attorney or the abuse of | ||
guardianship powers, that results in the unauthorized | ||
appropriation, sale, or transfer of the elderly person's property; | ||
(B) the unauthorized taking of personal assets; | ||
(C) the misappropriation, misuse, or | ||
unauthorized transfer of the elderly person's money from a personal | ||
or a joint account; and | ||
(D) the negligent or intentional failure to | ||
effectively use the elderly person's income and assets for the | ||
necessities required for the elderly person's support and | ||
maintenance. | ||
(6) "Financial institution" has the meaning assigned | ||
by Section 277.001. | ||
(7) "Financial regulatory officials" means the | ||
banking commissioner of Texas, the savings and mortgage lending | ||
commissioner, and the credit union commissioner. | ||
(b) For purposes of Subsection (a)(5), a person has a | ||
relationship of confidence or trust with an elderly person if the | ||
person: | ||
(1) is a parent, spouse, adult child, or other | ||
relative by blood or marriage of the elderly person; | ||
(2) is a joint tenant or tenant-in-common with the | ||
elderly person; | ||
(3) has a legal or fiduciary relationship with the | ||
elderly person; | ||
(4) is a financial planner or investment professional | ||
who provides services to the elderly person; or | ||
(5) is a paid or unpaid caregiver of the elderly | ||
person. | ||
Sec. 280.002. REPORTING FINANCIAL ABUSE OF ELDERLY PERSONS. | ||
(a) Notwithstanding any other law, if an officer or employee of a | ||
financial institution has a good faith belief that financial abuse | ||
of an elderly person has occurred or is occurring, the financial | ||
institution shall: | ||
(1) subject to Subchapter B-1, Chapter 48, Human | ||
Resources Code, submit a report notifying the adult protective | ||
services division of the suspected financial abuse; and | ||
(2) notify the appropriate local law enforcement | ||
agency with jurisdiction over the municipality or county in which | ||
the elderly person resides of the suspected financial abuse for | ||
purposes of investigating and determining whether an offense under | ||
Section 32.53, Penal Code, or other law has occurred. | ||
(b) The report and notification required by Subsection (a) | ||
must be made: | ||
(1) by telephone or electronic means, not later than | ||
24 hours after the financial institution becomes aware of the | ||
suspected financial abuse; and | ||
(2) in writing, not later than the third business day | ||
after the date the financial institution becomes aware of the | ||
suspected financial abuse. | ||
(c) For purposes of Subsection (a), an officer's or | ||
employee's good faith belief must be acquired in connection with | ||
the provision of financial services by the financial institution to | ||
or on behalf of the elderly person and must be based on: | ||
(1) the officer's or employee's observation or | ||
knowledge of an incident of suspected financial abuse, if the | ||
officer or employee has direct contact with the elderly person; or | ||
(2) the presence of information indicating potential | ||
financial abuse during a review or approval process performed by | ||
the officer or employee in connection with the provision of | ||
financial services, if the officer or employee does not have direct | ||
contact with the elderly person but reviews or approves the elderly | ||
person's financial documents, records, or transactions. | ||
(d) Nothing in this section shall be construed to require a | ||
financial institution to investigate an allegation of financial | ||
abuse made by an elderly person or other person. | ||
Sec. 280.003. CONFIDENTIALITY OF INFORMATION. (a) Except | ||
as provided by Subsection (b), the following information is | ||
confidential and is not subject to disclosure to the public, except | ||
under court order: | ||
(1) the information contained in a report submitted or | ||
notification made under this chapter; | ||
(2) the name of the financial institution making the | ||
report or notification or the identity of the officers or employees | ||
described by Section 280.002(a); and | ||
(3) information provided by or submitted to a | ||
financial institution in connection with an investigation arising | ||
out of a report submitted or notification made under Section | ||
280.002. | ||
(b) Information that is confidential under Subsection (a) | ||
may be disclosed only: | ||
(1) to the adult protective services division or | ||
another state agency, a law enforcement agency, or the attorney | ||
general, in connection with the reporting of or an investigation of | ||
suspected financial abuse of the elderly person to whom the | ||
information pertains; | ||
(2) to, or as authorized by, the elderly person or the | ||
guardian of the elderly person, unless the financial institution | ||
suspects the guardian of financial abuse of the elderly person; or | ||
(3) as part of a civil or criminal action related to | ||
the reported financial abuse. | ||
(c) A person commits an offense if the person discloses | ||
information in violation of this section. An offense under this | ||
section is a Class C misdemeanor. | ||
Sec. 280.004. IMMUNITY FROM LIABILITY. A financial | ||
institution that is acting in good faith and that submits a report | ||
or makes a notification under this chapter is immune from any | ||
criminal or civil liability arising from: | ||
(1) the report or notification; or | ||
(2) participation in any judicial proceeding arising | ||
from the report or notification. | ||
Sec. 280.005. CIVIL PENALTY. (a) A financial institution | ||
that fails to submit a report or make a notification in violation of | ||
this chapter is liable to this state for a civil penalty in an | ||
amount not to exceed $1,000, unless a court finds the violation to | ||
be wilful, in which case the amount of the civil penalty may not | ||
exceed $5,000. | ||
(b) The attorney general may bring an action on behalf of | ||
this state to recover a civil penalty under Subsection (a). | ||
Sec. 280.006. RULEMAKING. Subject to Section 48.072, Human | ||
Resources Code, the finance commission, the Credit Union | ||
Commission, and the executive commissioner of the Health and Human | ||
Services Commission, after consulting with the financial | ||
regulatory officials and the Department of Family and Protective | ||
Services, shall jointly adopt rules necessary to implement this | ||
chapter, including rules that require each financial institution to | ||
implement a training program to: | ||
(1) assist its officers and employees in recognizing | ||
signs of potential financial abuse of an elderly person; and | ||
(2) inform its officers and employees about the | ||
reporting and notification requirements of this chapter. | ||
SECTION 2. Section 59.006(a), Finance Code, is amended to | ||
read as follows: | ||
(a) This section provides the exclusive method for | ||
compelled discovery of a record of a financial institution relating | ||
to one or more customers but does not create a right of privacy in a | ||
record. This section does not apply to and does not require or | ||
authorize a financial institution to give a customer notice of: | ||
(1) a demand or inquiry from a state or federal | ||
government agency authorized by law to conduct an examination of | ||
the financial institution; | ||
(2) a record request from a state or federal | ||
government agency or instrumentality under statutory or | ||
administrative authority that provides for, or is accompanied by, a | ||
specific mechanism for discovery and protection of a customer | ||
record of a financial institution, including a record request from | ||
a federal agency subject to the Right to Financial Privacy Act of | ||
1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the | ||
Internal Revenue Service under Section 1205, Internal Revenue Code | ||
of 1986; | ||
(3) a record request from or report to a government | ||
agency arising out of: | ||
(A) the investigation or prosecution of a | ||
criminal offense; | ||
(B) the investigation of alleged abuse, neglect, | ||
or exploitation of an elderly or disabled person or of alleged | ||
financial abuse of an elderly person in accordance with Chapter 48, | ||
Human Resources Code; or | ||
(C) the assessment for or provision of | ||
guardianship services under Subchapter E, Chapter 161, Human | ||
Resources Code; | ||
(4) a record request in connection with a garnishment | ||
proceeding in which the financial institution is garnishee and the | ||
customer is debtor; | ||
(5) a record request by a duly appointed receiver for | ||
the customer; | ||
(6) an investigative demand or inquiry from a state | ||
legislative investigating committee; | ||
(7) an investigative demand or inquiry from the | ||
attorney general of this state as authorized by law other than the | ||
procedural law governing discovery in civil cases; | ||
(8) the voluntary use or disclosure of a record by a | ||
financial institution subject to other applicable state or federal | ||
law; or | ||
(9) a record request in connection with an | ||
investigation conducted under Section 1054.151, 1054.152, or | ||
1102.001, Estates Code. | ||
SECTION 3. Subchapter A, Chapter 48, Human Resources Code, | ||
is amended by adding Section 48.008 to read as follows: | ||
Sec. 48.008. CONSOLIDATION OF CERTAIN REPORTS. If | ||
cost-effective and feasible, the executive commissioner by rule may | ||
consolidate the form and procedures used to submit a report under | ||
Sections 48.051 and 48.072. | ||
SECTION 4. Chapter 48, Human Resources Code, is amended by | ||
adding Subchapter B-1 to read as follows: | ||
SUBCHAPTER B-1. FINANCIAL ABUSE OF ELDERLY PERSONS | ||
Sec. 48.071. DEFINITIONS. In this subchapter, "financial | ||
abuse," "financial institution," and "financial regulatory | ||
officials" have the meanings assigned by Section 280.001, Finance | ||
Code. | ||
Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL ABUSE. | ||
(a) The executive commissioner, after consultation with the | ||
financial regulatory officials, by rule shall prescribe the form | ||
and content of a report submitted by a financial institution under | ||
Section 280.002, Finance Code. A report submitted by a financial | ||
institution under Section 280.002, Finance Code, constitutes a | ||
report of suspected financial abuse of an elderly person for | ||
purposes of this subchapter. | ||
(b) In adopting rules under this section, the executive | ||
commissioner shall ensure that a report of suspected financial | ||
abuse of an elderly person described by Subsection (a) includes to | ||
the extent possible the same information required under Section | ||
48.051(d). | ||
(c) A financial institution that submits a report to the | ||
department of suspected financial abuse of an elderly person under | ||
Section 280.002, Finance Code, in accordance with this section | ||
satisfies the requirement of making a report of suspected abuse, | ||
neglect, or exploitation, as applicable, under Section 48.051, if | ||
applicable. | ||
Sec. 48.073. ASSESSMENT, INVESTIGATION, AND DISPOSITION OF | ||
REPORTS. The executive commissioner shall adopt rules regarding | ||
the assessment, investigation, and disposition of a report of | ||
suspected financial abuse of an elderly person received under | ||
Section 280.002, Finance Code. The executive commissioner shall | ||
model rules adopted under this section after the assessment, | ||
investigation, and disposition procedures used for reports of | ||
abuse, neglect, or exploitation received by the department under | ||
this chapter, other than a report received under Subchapter F, and | ||
shall include rules requiring: | ||
(1) a risk assessment similar to the assessment | ||
required under Section 48.004; | ||
(2) investigations similar to the investigations | ||
required under Subchapter D, including requirements that the | ||
department: | ||
(A) take action on a report within the timeframe | ||
and manner provided by Section 48.151; | ||
(B) perform an interview with the elderly person | ||
similar to the interview required by Section 48.152; | ||
(C) if appropriate, implement a system to | ||
investigate complex cases similar to the system implemented under | ||
Section 48.1521; | ||
(D) report criminal conduct to appropriate law | ||
enforcement agencies similar to Section 48.1522; and | ||
(E) review certain cases involving multiple | ||
reports under Section 48.051 and this subchapter similar to Section | ||
48.1523; and | ||
(3) a determination of services similar to the | ||
determination required by Section 48.202. | ||
Sec. 48.074. AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The | ||
department or another appropriate state agency has the authority to | ||
act on or with respect to an allegation of financial abuse of an | ||
elderly person under this subchapter to the same extent the | ||
department or other agency has the authority to act on or with | ||
respect to an allegation of abuse, neglect, or exploitation under | ||
Subchapter B. | ||
Sec. 48.075. ACCESS TO INVESTIGATION. (a) To implement an | ||
investigation of reported financial abuse of an elderly person, the | ||
probate court, as defined by Section 22.007, Estates Code, may | ||
authorize entry of the place of residence of an elderly person. | ||
(b) A peace officer shall accompany and assist the person | ||
making a court-ordered entry under this section, if in the opinion | ||
of the court such action is necessary. | ||
Sec. 48.076. INTERFERENCE WITH INVESTIGATION OR SERVICES | ||
PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a | ||
person, including a guardian, may not interfere with: | ||
(1) an investigation by the department or by another | ||
protective services agency of suspected financial abuse of an | ||
elderly person; or | ||
(2) the provision of protective services to an elderly | ||
person. | ||
(b) The department or another protective services agency | ||
may petition the appropriate court to enjoin any interference with: | ||
(1) an investigation of suspected financial abuse of | ||
an elderly person under this subchapter; or | ||
(2) the provision of protective services such as | ||
removal of an elderly person to safer surroundings or safeguarding | ||
the person's resources from financial abuse. | ||
Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission, | ||
the banking commissioner of Texas, the savings and mortgage lending | ||
commissioner, the credit union commissioner, and the department | ||
shall enter into a memorandum of understanding regarding the | ||
reporting and investigation of suspected financial abuse of an | ||
elderly person under this subchapter. | ||
Sec. 48.078. CONFIDENTIALITY. (a) All files, reports, | ||
records, communications, and working papers used or developed by | ||
the department or other state agency in an investigation made under | ||
this subchapter or in providing services as a result of an | ||
investigation are confidential and not subject to disclosure under | ||
Chapter 552, Government Code. | ||
(b) The department or investigating state agency may | ||
establish procedures to exchange with another state agency or | ||
governmental entity information that is necessary for the | ||
department, state agency, or entity to properly execute its | ||
respective duties and responsibilities to provide services to | ||
elderly persons under this chapter or other law. An exchange of | ||
information under this subsection does not affect whether the | ||
information is subject to disclosure under Chapter 552, Government | ||
Code. | ||
SECTION 5. Subchapter C, Chapter 48, Human Resources Code, | ||
is amended by adding Section 48.104 to read as follows: | ||
Sec. 48.104. APPLICABILITY. (a) This subchapter does not | ||
apply to a report of financial abuse of an elderly person made under | ||
Subchapter B-1. | ||
(b) The confidentiality of information received or provided | ||
by the department in connection with a report of financial abuse of | ||
an elderly person made under Subchapter B-1 is governed by Section | ||
48.078 and by Section 280.003, Finance Code. | ||
SECTION 6. Subchapter D, Chapter 48, Human Resources Code, | ||
is amended by adding Section 48.1511 to read as follows: | ||
Sec. 48.1511. APPLICABILITY. This subchapter does not | ||
apply to an investigation conducted under Subchapter B-1 unless the | ||
executive commissioner by rule requires the application of a | ||
provision of this subchapter. | ||
SECTION 7. This Act takes effect September 1, 2017. |