HUMAN RESOURCES CODE
CHAPTER 48. INVESTIGATIONS AND PROTECTIVE SERVICES FOR ELDERLY AND
DISABLED PERSONS
SUBCHAPTER A. GENERAL PROVISIONS
§ 48.001. PURPOSE. The purpose of this chapter is to
provide for the authority to investigate the abuse, neglect, or
exploitation of an elderly or disabled person and to provide
protective services to that person.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, § 2, eff.
Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, § 2, eff. Sept. 1,
1999.
§ 48.002. DEFINITIONS. (a) Except as otherwise
provided under Section 48.251, in this chapter:
(1) "Elderly person" means a person 65 years of age or
older.
(2) "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 an elderly or
disabled person by the person's caretaker, family member, or other
individual who has an ongoing relationship with the person; or
(B) sexual abuse of an elderly or disabled
person, 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 person's caretaker, family member, or
other individual who has an ongoing relationship with the person.
(3) "Exploitation" means the illegal or improper act
or process of a caretaker, family member, or other individual who
has an ongoing relationship with the elderly or disabled person
using the resources of an elderly or disabled person for monetary or
personal benefit, profit, or gain without the informed consent of
the elderly or disabled person.
(4) "Neglect" means the failure to provide for one's
self the goods or services, including medical services, which are
necessary to avoid physical or emotional harm or pain or the failure
of a caretaker to provide such goods or services.
(5) "Protective services" means the services
furnished by the department or by a protective services agency to an
elderly or disabled person who has been determined to be in a state
of abuse, neglect, or exploitation. These services may include
social casework, case management, and arranging for psychiatric and
health evaluation, home care, day care, social services, health
care, and other services consistent with this chapter.
(6) "Protective services agency" means a public or
private agency, corporation, board, or organization that provides
protective services to elderly or disabled persons in the state of
abuse, neglect, or exploitation.
(7) "Department" means the Department of Protective
and Regulatory Services.
(8) "Disabled person" means a person with a mental,
physical, or developmental disability that substantially impairs
the person's ability to provide adequately for the person's care or
protection and who is:
(A) 18 years of age or older; or
(B) under 18 years of age and who has had the
disabilities of minority removed.
(9) "Legal holiday" means a state holiday listed in
Subchapter B, Chapter 662, Government Code, or an officially
declared county holiday.
(10) "Volunteer" means a person who:
(A) performs services for or on behalf of the
department under the supervision of a department employee; and
(B) does not receive compensation that exceeds
the authorized expenses the person incurs in performing those
services.
(b) The definitions of "abuse," "neglect," and
"exploitation" adopted by the department as prescribed by Section
48.251 apply to an investigation of abuse, neglect, or exploitation
in a facility subject to Subchapters F and H.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 274, ch. 51, § 1,
eff. Aug. 29, 1983; Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 264, § 16, eff.
Aug. 26, 1985; Acts 1987, 70th Leg., ch. 568, § 1, eff. Sept. 1,
1987; Acts 1991, 72nd Leg., ch. 213, § 1, eff. Sept. 1, 1991;
Acts 1995, 74th Leg., ch. 76, § 5.95(15), 8.041, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 303, § 3, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 1022, § 51, eff. Sept. 1, 1997; Acts
1999, 76th Leg., ch. 907, § 2, eff. Sept. 1, 1999.
§ 48.003. INVESTIGATIONS IN NURSING HOMES AND SIMILAR
FACILITIES. (a) This chapter does not apply if the alleged or
suspected abuse, neglect, or exploitation occurs in a facility
licensed under Chapter 242, Health and Safety Code.
(b) Alleged or suspected abuse, neglect, or exploitation
that occurs in a facility licensed under Chapter 242, Health and
Safety Code, is governed by Subchapter B, Chapter 242, Health and
Safety Code.
Added by Acts 1995, 74th Leg., ch. 303, § 14, eff. Sept. 1, 1995.
Renumbered from § 48.085 and amended by Acts 1999, 76th Leg., ch.
907, § 3, eff. Sept. 1, 1999.
SUBCHAPTER B. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION:
IMMUNITIES
§ 48.051. REPORT. (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
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 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.
(c) The duty imposed by Subsections (a) and (b) applies
without exception to a person whose knowledge concerning possible
abuse, neglect, or exploitation is obtained during the scope of the
person's employment or whose professional communications are
generally confidential, including an attorney, clergy member,
medical practitioner, social worker, and mental health
professional.
(d) The report may be made orally or in writing. It shall
include:
(1) the name, age, and address of the elderly or
disabled person;
(2) the name and address of any person responsible for
the elderly or disabled person's care;
(3) the nature and extent of the elderly or disabled
person's condition;
(4) the basis of the reporter's knowledge; and
(5) any other relevant information.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, § 5.02, eff.
Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, § 16, eff. June 14,
1989. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff.
Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172,
§ 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, §
5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, § 16,
eff. June 14, 1989; Acts 1991, 72nd Leg., ch. 14, § 284(22),
eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 8.043, eff.
Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, § 6, 15(1), eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, § 54, eff. Sept.
1, 1997. Renumbered from § 48.036 and amended by Acts 1999, 76th
Leg., ch. 907, § 5, eff. Sept. 1, 1999. Amended by Acts 2001,
77th Leg., ch. 205, § 1, eff. May 21, 2001.
§ 48.052. FAILURE TO REPORT; PENALTY. (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.
(b) This section does not apply if the alleged abuse,
neglect, or exploitation occurred in a facility licensed under
Chapter 242, Health and Safety Code. Failure to report abuse,
neglect, or exploitation that occurs in a facility licensed under
that chapter is governed by that chapter.
Added by Acts 1987, 70th Leg., ch. 1052, § 5.03, eff. Sept. 1,
1987. Amended by Acts 1991, 72nd Leg., ch. 14, § 284(21), eff.
Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, § 7, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1278, § 1, eff; Sept. 1, 1997.
Renumbered from § 48.0361 and amended by Acts 1999, 76th Leg.,
ch. 907, § 6, eff. Sept. 1, 1999.
§ 48.053. FALSE REPORT; PENALTY. A person commits an
offense if the person knowingly or intentionally reports
information as provided in this chapter that the person knows is
false or lacks factual foundation. An offense under this section is
a Class B misdemeanor.
Added by Acts 1997, 75th Leg., ch. 1022, § 55, eff. Sept. 1,
1997. Renumbered from § 48.0362 by Acts 1999, 76th Leg., ch.
907, § 7, eff. Sept. 1, 1999.
§ 48.054. IMMUNITY. (a) A person filing a report under
this chapter or testifying or otherwise participating in any
judicial proceeding arising from a petition, report, or
investigation is immune from civil or criminal liability on account
of his or her petition, report, testimony, or participation, unless
the person acted in bad faith or with a malicious purpose.
(b) A person, including an authorized department volunteer,
medical personnel, or law enforcement officer, who at the request
of the department participates in an investigation required by this
chapter or in an action that results from that investigation is
immune from civil or criminal liability for any act or omission
relating to that participation if the person acted in good faith
and, if applicable, in the course and scope of the person's assigned
responsibilities or duties.
(c) A person who reports the person's own abuse, neglect, or
exploitation of another person or who acts in bad faith or with
malicious purpose in reporting alleged abuse, neglect, or
exploitation is not immune from civil or criminal liability.
(d) An employer whose employee acts under Subsection (a) or
(b) is immune from civil or criminal liability on account of an
employee's report, testimony, or participation in any judicial
proceedings arising from a petition, report, or investigation.
This subsection does not apply to an employer who is the subject of
an investigation.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, § 10, eff.
Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, § 8, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 205, § 2, eff. May 21, 2001.
SUBCHAPTER C. CONFIDENTIALITY
§ 48.101. CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION; AGENCY EXCHANGE OF INFORMATION. (a) The following
information is confidential and not subject to disclosure under
Chapter 552, Government Code:
(1) a report of abuse, neglect, or exploitation made
under this chapter;
(2) the identity of the person making the report; and
(3) except as provided by this section, all files,
reports, records, communications, and working papers used or
developed in an investigation made under this chapter or in
providing services as a result of an investigation.
(b) Confidential information may be disclosed only for a
purpose consistent with this chapter and as provided by department
or investigating state agency rule and applicable federal law.
(c) A court may order disclosure of confidential
information only if:
(1) a motion is filed with the court requesting
release of the information and a hearing on that request;
(2) notice of that hearing is served on the department
or investigating state agency and each interested party; and
(3) the court determines after the hearing and an in
camera review of the information that disclosure is essential to
the administration of justice and will not endanger the life or
safety of any individual who:
(A) is the subject of a report of abuse, neglect,
or exploitation;
(B) makes a report of abuse, neglect, or
exploitation; or
(C) participates in an investigation of reported
abuse, neglect, or exploitation.
(d) The department or investigating state agency by rule
shall provide for the release on request to a person who is the
subject of a report of abuse, neglect, or exploitation or to that
person's legal representative of otherwise confidential
information relating to that report. The department or
investigating state agency shall edit the information before
release to protect the confidentiality of information relating to
the reporter's identity and to protect any other individual whose
safety or welfare may be endangered by disclosure.
(e) The department or investigating state agency may adopt
rules relating to the release of information contained in the
record of a deceased individual who was the subject of an
investigation conducted by the department or investigating state
agency or to whom the department has provided protective services.
The rules must be consistent with the purposes of this chapter and
any applicable state or federal law.
(f) 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 or disabled 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.
Added by Acts 1995, 74th Leg., ch. 303, § 14, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1022, § 58, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 907, § 10, eff. Sept. 1, 1999.
§ 48.102. REPORTS OF INVESTIGATIONS IN
SCHOOLS. (a) The department shall send a written report of the
department's investigation of alleged abuse, neglect, or
exploitation of a disabled adult at a school, as appropriate, to the
Texas Education Agency, the agency responsible for teacher
certification, the local school board or the school's governing
body, and the school principal or director, unless the principal or
director is alleged to have committed the abuse, neglect, or
exploitation. The entity to which the report is sent shall take
appropriate action.
(b) On request, the department shall provide a copy of the
report of the investigation to the person who is alleged to have
suffered the abuse, neglect, or exploitation, to the legal guardian
of that person, and to the person alleged to have committed the
abuse, neglect, or exploitation.
(c) The report of the investigation shall be edited to
protect the identity of the person who made the report under Section
48.051.
(d) The department shall adopt rules necessary to implement
this section.
Added by Acts 1999, 76th Leg., ch. 907, § 12, eff. Sept. 1, 1999.
§ 48.103. NOTIFICATION OF LICENSING OR CONTRACTING
AGENCY. (a) On determining after an investigation that an
elderly or disabled person has been abused, exploited, or neglected
by an employee of a home and community support services agency
licensed under Chapter 142, Health and Safety Code, the department
shall:
(1) notify the state agency responsible for licensing
the home and community support services agency of the department's
determination;
(2) notify any health and human services agency, as
defined by Section 531.001, Government Code, that contracts with
the home and community support services agency for the delivery of
health care services of the department's determination; and
(3) provide to the licensing state agency and any
contracting health and human services agency access to the
department's records or documents relating to the department's
investigation.
(b) Providing access to a confidential record or document
under this section does not constitute a waiver of confidentiality.
Added by Acts 1999, 76th Leg., ch. 276, § 13, eff. Sept. 1, 1999.
Renumbered from § 48.0381 by Acts 2001, 77th Leg., ch. 75 § 1,
eff. May 14, 2001.
SUBCHAPTER D. INVESTIGATIONS BY ALL AGENCIES
§ 48.151. ACTION ON REPORT. (a) Not later than 24
hours after the department receives a report of an allegation of
abuse, neglect, or exploitation under Section 48.051, the
department shall initiate a prompt and thorough investigation as
needed to evaluate the accuracy of the report and to assess the need
for protective services, unless the department determines that the
report:
(1) is frivolous or patently without a factual basis;
or
(2) does not concern abuse, neglect, or exploitation,
as those terms are defined by Section 48.002.
(b) The department shall adopt rules for conducting
investigations under this chapter.
(c) The department by rule may assign priorities and
prescribe investigative procedures for conducting investigations
according to the degree of severity and immediacy of the alleged
harm to the individual. Notwithstanding Subsection (a), the
department's priorities and procedures may provide that an
investigation is not required to be initiated within 24 hours in all
cases.
(d) The department shall prepare and keep on file a report
of each investigation conducted by the department.
(e) This section does not apply to investigations conducted
under Subchapter F or H.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, § 5.04, eff.
Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, § 8, eff. Sept. 1,
1995; Acts 1997, 75th Leg., ch. 1022, § 56, eff. Sept. 1, 1997.
Renumbered from § 48.037 and amended by Acts 1999, 76th Leg., ch.
907, § 14, eff. Sept. 1, 1999.
§ 48.152. INVESTIGATION. An investigation by the
department or a state agency shall include an interview with the
elderly or disabled person, if appropriate, and with persons
thought to have knowledge of the circumstances. The investigation
may include an interview with an alleged juvenile perpetrator of
the alleged abuse, neglect, or exploitation. The department or
state agency may conduct an interview under this section in private
or may include any person the department or agency determines is
necessary.
Added by Acts 1999, 76th Leg., ch. 907, § 15, eff. Sept. 1, 1999.
§ 48.153. ACCESS TO INVESTIGATION. (a) To implement
an investigation of reported abuse, neglect, or exploitation, the
probate court, or the county court when no probate court exists, may
authorize entry of the place of residence of the elderly or disabled
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.
Added by Acts 1999, 76th Leg., ch. 907, § 15, eff. Sept. 1, 1999.
§ 48.154. ACCESS TO RECORDS OR DOCUMENTS. (a) The
department or state agency, as appropriate, shall have access to
any records or documents, including client-identifying information
and medical and psychological records, necessary to the performance
of the department's or state agency's duties under this chapter.
The duties include but are not limited to the investigation of
abuse, neglect, or exploitation or the provisions of services to an
elderly or disabled person. A person or agency that has a record or
document that the department or state agency needs to perform its
duties under this chapter shall, without unnecessary delay, make
the record or document available to the department or agency.
(b) The department is exempt from the payment of a fee
otherwise required or authorized by law to obtain a medical record,
including a mental health record, from a hospital or health care
provider if the request for a record is made in the course of an
investigation by the department.
(c) If the department or another state agency cannot obtain
access to a record or document that is necessary to properly conduct
an investigation or to perform another duty under this chapter, the
department or agency may petition the probate court or the
statutory or constitutional county court having probate
jurisdiction for access to the record or document.
(d) On good cause shown, the court shall order the person
who denied access to a record or document to allow the department or
agency to have access under the terms and conditions prescribed by
the court.
(e) A person is entitled to notice and a hearing on the
petition.
(f) Access to a confidential record under this section does
not constitute a waiver of confidentiality.
Added by Acts 1993, 73rd Leg., ch. 651, § 1, eff. Aug. 30, 1993.
Amended by Acts 1995, 74th Leg., ch. 303, § 10, eff. Sept. 1,
1995. Renumbered from § 48.0385 and amended by Acts 1999, 76th
Leg., ch. 907, § 16, eff. Sept. 1, 1999.
§ 48.155. INTERFERENCE WITH INVESTIGATION OR SERVICES
PROHIBITED. (a) A person, including a guardian and
notwithstanding Section 675, Texas Probate Code, may not interfere
with:
(1) an investigation by the department or by a
protective services agency of alleged abuse, neglect, or
exploitation of an elderly or disabled person; or
(2) the provision of protective services to an elderly
or disabled person.
(b) The department or a protective services agency may
petition the appropriate court to enjoin any interference with:
(1) an investigation of alleged abuse, neglect, or
exploitation; or
(2) the provision of protective services such as
removal of the elderly or disabled person to safer surroundings or
safeguarding the person's resources from exploitation.
Added by Acts 1995, 74th Leg., ch. 303, § 14, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1022, § 59, eff. Sept. 1,
1997. Renumbered from § 48.103 by Acts 1999, 76th Leg., ch. 907,
§ 17, eff. Sept. 1, 1999.
§ 48.156. AGENCY REPORTS. A protective services agency
shall make reports relating to its provision of protective services
as the department or a court may require.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983. Renumbered from § 48.057 by Acts 1999, 76th
Leg., ch. 907, § 18, eff. Sept. 1, 1999.
§ 48.157. REPORT TO LAW ENFORCEMENT AGENCY. If the
department's or state agency's investigation reveals 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, a copy of the
investigation shall be submitted to the appropriate law enforcement
agency.
Added by Acts 1999, 76th Leg., ch. 907, § 19, eff. Sept. 1, 1999.
SUBCHAPTER E. PROVISION OF SERVICES; GUARDIANSHIP SERVICES;
EMERGENCY PROTECTION
§ 48.201. APPLICATION OF SUBCHAPTER. Except as
otherwise provided, this subchapter does not apply to a Texas
Department of Mental Health and Mental Retardation investigation
under Subchapter F or H.
Added by Acts 1999, 76th Leg., ch. 907, § 21, eff. Sept. 1, 1999.
§ 48.202. SERVICE DETERMINATION BY DEPARTMENT OR
AGENCY. In an investigation the department or state agency, as
appropriate, shall determine:
(1) whether the person needs protective services from
the department;
(2) what services are needed;
(3) whether services are available from the
department, from the state agency, or in the community and how they
can be provided;
(4) whether the person, acting alone, would be capable
of obtaining needed services and could bear the cost or would be
eligible for services from the department or state agency;
(5) whether a caretaker would be willing to provide
services or would agree to their provisions;
(6) whether the elderly or disabled person desires the
services; and
(7) other pertinent data.
Added by Acts 1999, 76th Leg., ch. 907, § 21, eff. Sept. 1, 1999.
§ 48.203. VOLUNTARY PROTECTIVE SERVICES. (a) An
elderly or disabled person may receive voluntary protective
services if the person requests or consents to receive those
services.
(b) The elderly or disabled person who receives protective
services shall participate in all decisions regarding his or her
welfare, if able to do so.
(c) The least restrictive alternatives should be made
available to the elderly or disabled person who receives protective
services.
(d) If an elderly or disabled person withdraws or refuses
consent, the services may not be provided.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983. Renumbered from § 48.059 by Acts 1999, 76th
Leg., ch. 907, § 22, eff. Sept. 1, 1999.
§ 48.204. AGENCY POWERS. A protective services agency
may furnish protective services to an elderly or disabled person
with the person's consent or, if the person lacks the capacity to
consent, without that person's consent as provided by this chapter.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, § 12, eff.
Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, § 23, eff. Sept. 1,
1999.
§ 48.205. PROVISION OF SERVICES. (a) The department
may provide direct protective services or contract with protective
services agencies for the provisions of those services.
(b) The department shall use existing resources and
services of public and private agencies in providing protective
services.
(c) The department and law enforcement officials, courts,
and agencies shall cooperate when providing protective services.
(d) The responsibilities prescribed by this chapter are
exclusive of those designated to other state or federal agencies
authorized or required by law to provide protective services to
elderly or disabled persons determined to be in the state of abuse,
neglect, or exploitation.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983. Added by Acts 1981, 67th Leg., p. 2368, ch. 584,
§ 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730,
ch. 172, § 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 905,
§ 5, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 303, § 4,
eff. Sept. 1, 1995. Renumbered from § 48.021 and amended by Acts
1999, 76th Leg., ch. 907, § 24, eff. Sept. 1, 1999.
§ 48.206. COST OF SERVICES. If the elderly or disabled
person receiving the protective services is determined to be
financially able to contribute to the payments for those services,
the provider shall receive a reasonable reimbursement from the
person's assets.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983. Renumbered from § 48.058 by Acts 1999, 76th
Leg., ch. 907, § 25, eff. Sept. 1, 1999.
§ 48.207. OBJECTION TO MEDICAL TREATMENT. This chapter
does not authorize or require any medical treatment of a person who
objects on the grounds that he is an adherent or member of a
recognized church or religious denomination the tenets and practice
of which may include reliance solely upon spiritual means through
prayer for healing.
Added by Acts 1995, 74th Leg., ch. 303, § 14, eff. Sept. 1, 1995.
Renumbered from § 48.102 by Acts 1999, 76th Leg., ch. 907, §
11, eff. Sept. 1, 1999.
§ 48.208. EMERGENCY ORDER FOR PROTECTIVE
SERVICES. (a) For purposes of this section, a person lacks the
capacity to consent to receive protective services if, because of
mental or physical impairment, the person is incapable of
understanding the nature of the services offered and agreeing to
receive or rejecting protective services.
(b) If the department determines that an elderly or disabled
person is suffering from abuse, neglect, or exploitation presenting
a threat to life or physical safety, that the person lacks capacity
to consent to receive protective services, and that no consent can
be obtained, the department may petition the probate or statutory
or constitutional county court that has probate jurisdiction in the
county in which the elderly or disabled person resides for an
emergency order authorizing protective services.
(c) The petition shall be verified and shall include:
(1) the name, age, and address of the elderly or
disabled person who needs protective services;
(2) the nature of the abuse, neglect, or exploitation;
(3) the services needed; and
(4) a medical report signed by a physician stating
that the person is suffering from abuse, neglect, or exploitation
presenting a threat to life or physical safety and stating that the
person is physically or mentally incapable of consenting to
services unless the court finds that an immediate danger to the
health or safety of the elderly or disabled person exists and there
is not sufficient time to obtain the medical report.
(d) On finding that there is reasonable cause to believe
that abuse, neglect, or exploitation presents a threat to life or
physical safety for the elderly or disabled person and that the
elderly or disabled person lacks capacity to consent to services,
the court may:
(1) order removal of the elderly or disabled person to
safer surroundings;
(2) order medical services; and
(3) order other available services necessary to remove
conditions creating the threat to life or physical safety,
including the services of law enforcement officers or emergency
medical services personnel.
(e) The emergency order expires at the end of 72 hours from
the time of the order unless the 72-hour period ends on a Saturday,
Sunday, or legal holiday in which event the order is automatically
extended to 4 p.m. on the first succeeding business day. An order
may be renewed for not more than 14 additional days. A renewal
order that ends on a Saturday, Sunday, or legal holiday is
automatically extended to 4 p.m. on the first succeeding business
day. The court may modify or terminate the emergency order on
petition of the department, the incapacitated person, or any person
interested in his welfare.
(f) Any medical facility or physician treating an elderly or
disabled person pursuant to an emergency order under this chapter
is not liable for any damages arising from the treatment, except
those damages resulting from the negligence of the facility or
physician.
(g) The court shall appoint an attorney ad litem to
represent the elderly or disabled person in any proceeding brought
by the department under this section. A reasonable fee, as
determined by the court, shall be paid to the attorney ad litem from
the general fund of the county.
(h) If the department cannot obtain an emergency order under
this section because the court is closed on a Saturday, Sunday, or
legal holiday or after 5 p.m., the department may remove the elderly
or disabled person to safer surroundings, authorize medical
treatment, or order or provide other available services necessary
to remove conditions creating the threat to life or physical
safety. The department must obtain an emergency order under this
section not later than 4 p.m. on the first succeeding business day
after the date on which protective services are provided. If the
department does not obtain an emergency order, the department shall
cease providing protective services and, if necessary, make
arrangements for the immediate return of the person to the place
from which the person was removed, to the person's place of
residence in the state, or to another suitable place.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, § 4, eff.
Sept. 1, 1987; Acts 1987, 70th Leg., ch. 569, § 1, eff. June 18,
1987; Acts 1991, 72nd Leg., ch. 213, § 2 to 4, eff. Sept. 1,
1991; Acts 1995, 74th Leg., ch. 303, § 13, eff. Sept. 1, 1995.
Renumbered from § 48.061 and amended by Acts 1999, 76th Leg., ch.
907, § 26, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg.,
ch. 75, § 2, eff. May 14, 2001.
§ 48.209. GUARDIANSHIPS. (a) The department shall
file an application under Section 682 or 875, Texas Probate Code, to
be appointed guardian of the person or estate or both of an
individual who is a minor, is a conservatee of the department, and,
because of a physical or mental condition, will be substantially
unable to provide food, clothing, or shelter for himself or
herself, to care for the individual's own physical health, or to
manage the individual's own financial affairs when the individual
becomes an adult. If a less restrictive alternative to
guardianship is available for an individual, the department shall
pursue the alternative instead of applying for appointment as a
guardian.
(b) As a last resort, the department may apply to be
appointed guardian of the person or estate of an elderly or disabled
person who is found by the department to be in a state of abuse,
neglect, or exploitation, and who, because of a physical or mental
condition, will be substantially unable to provide food, clothing,
or shelter for himself or herself, to care for the individual's own
physical health, or to manage the individual's own financial
affairs. A representative of the department shall take the oath
required by the Texas Probate Code on behalf of the department if
the department is appointed guardian. If the department knows that
an individual is willing and able to serve as the guardian, the
department may inform the court of that individual's willingness
and ability.
(c) If appropriate, the department may contract with a
political subdivision of this state, a private agency, or another
state agency for the provision of guardianship services under this
section. The department or a political subdivision of the state or
state agency with which the department contracts under this section
is not required to post a bond or pay any cost or fee otherwise
required by the Texas Probate Code.
(d) If the department is appointed guardian, the department
is not liable for funding services provided to the department's
ward, including long-term care or burial expenses.
(e) The department may not be required to pay fees
associated with the appointment of a guardian ad litem or attorney
ad litem.
(f) The department shall file an application with the court
to name a successor guardian if the department becomes aware of a
qualified and willing individual or guardianship program serving
the area in which the ward is located.
Added by Acts 1995, 74th Leg., ch. 303, § 4, eff. Sept. 1, 1995.
Amended by Acts 1995, 74th Leg., ch. 76, § 8.042, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 1039, § 2, eff. Sept. 1, 1995;
Acts 1997, 75th Leg., ch. 1022, § 52, 53, eff. Sept. 1, 1997.
Renumbered from § 48.0215 and amended by Acts 1999, 76th Leg.,
ch. 907, § 27, eff. Sept. 1, 1999.
§ 48.210. REPRESENTATION. (a) Except as provided by
Subsection (b), the prosecuting attorney representing the state in
criminal cases in the county court shall represent the department
in any proceeding under this chapter unless the representation
would be a conflict of interest.
(b) In a county having a population of more than 2.8
million, the prosecuting attorney representing the state in civil
cases in the county court shall represent the department in any
proceeding under this chapter unless the representation would be a
conflict of interest.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, § 3, eff.
Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, § 11, eff. Sept. 1,
1995. Renumbered from § 48.040 by Acts 1999, 76th Leg., ch. 907,
§ 28, eff. Sept. 1, 1999.
§ 48.211. REPORT TO GUARDIANSHIP COURT. If the elderly
or disabled person has a guardian, a written notification of the
findings of the investigation shall be sent to the court to which
the guardian is accountable.
Added by Acts 1999, 76th Leg., ch. 907, § 29, eff. Sept. 1, 1999.
SUBCHAPTER F. INVESTIGATIONS IN TDMHMR FACILITIES, COMMUNITY
CENTERS, AND MHMR AUTHORITIES
§ 48.251. DEFINITIONS. The department by rule shall
adopt definitions of "abuse," "neglect," and "exploitation" to
govern an investigation under this subchapter and Subchapter H.
Added by Acts 1999, 76th Leg., ch. 907, § 31, eff. Sept. 1, 1999.
§ 48.252. INVESTIGATION OF REPORTS IN 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 facility operated by the Texas Department of
Mental Health and 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
person by contract with a facility operated by the Texas Department
of Mental Health and Mental Retardation, a community center, a
local mental health authority, or a local mental retardation
authority.
(b) The department by rule shall define who is "an
individual with a disability receiving services."
(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.
Added by Acts 1995, 74th Leg., ch. 303, § 14, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1022, § 57, eff. Sept. 1,
1997; Acts 1997, 75th Leg., ch. 1281, § 1, eff. Sept. 1, 1997.
Renumbered from § 48.081 and amended by Acts 1999, 76th Leg., ch.
907, § 32, eff. Sept. 1, 1999.
§ 48.253. ACTION ON REPORT. On receipt by the
department of a report of alleged abuse, neglect, or exploitation
under this subchapter, the department shall initiate a prompt and
thorough investigation as needed to evaluate the accuracy of the
report unless the department, in accordance with rules adopted
under this subchapter, determines that the report:
(1) is frivolous or patently without a factual basis;
or
(2) does not concern abuse, neglect, or exploitation.
Added by Acts 1999, 76th Leg., ch. 907, § 33, eff. Sept. 1, 1999.
§ 48.254. FORWARDING OF COMPLETED INVESTIGATION
REPORT. The department shall forward to 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
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.
Added by Acts 1999, 76th Leg., ch. 907, § 33, eff. Sept. 1, 1999.
§ 48.255. RULES FOR INVESTIGATIONS UNDER THIS
SUBCHAPTER. (a) The department and the Texas Department of
Mental Health and Mental Retardation shall develop joint rules to
facilitate investigations in state mental health and mental
retardation facilities.
(b) The department and the Texas Department of Mental Health
and Mental Retardation by joint rules shall establish procedures
for resolving disagreements between the department and the Texas
Department of Mental Health and Mental Retardation concerning the
department's investigation findings.
(c) The department and the Texas Department of Mental Health
and Mental Retardation shall develop joint rules to facilitate
investigations in community centers, mental health authorities,
and mental retardation authorities.
(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 community center,
or by a mental health authority or mental retardation authority.
(e) The department shall provide by rule for an appeals
process by the alleged victim of abuse, neglect, or exploitation
under this section.
(f) The department by rule may assign priorities to an
investigation conducted by the department under this section. The
primary criterion used by the department in assigning a priority
must be the risk that a delay in the investigation will impede the
collection of evidence.
Added by Acts 1999, 76th Leg., ch. 907, § 33, eff. Sept. 1, 1999.
§ 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND
INVESTIGATIONS. The department and the Texas Department of Mental
Health and Mental Retardation shall jointly develop and implement a
single system to track reports and investigations under this
section. To facilitate implementation of the system, the
department and the Texas Department of Mental Health and Mental
Retardation shall use appropriate methods of measuring the number
and outcome of reports and investigations under this section.
Added by Acts 1999, 76th Leg., ch. 907, § 33, eff. Sept. 1, 1999.
SUBCHAPTER G. INVESTIGATIONS IN CERTAIN FACILITIES
§ 48.301. INVESTIGATION OF REPORTS IN OTHER STATE
FACILITIES. (a) If the department receives a report under this
section relating to an elderly or disabled person 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.
(b) A state agency that receives a report under this section
shall make a thorough investigation promptly after receiving a
report that an elderly or disabled person has been or may be abused,
neglected, or exploited in a facility operated, licensed,
certified, or registered by the agency. The primary purpose of the
investigation is the protection of the elderly or disabled person.
(c) Each state agency, 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.
(d) The state agency shall prepare and keep on file a
complete written report of each investigation conducted by the
state agency under this section.
(e) A state agency that receives a complaint relating to an
investigation conducted under this section shall refer the
complaint to its governing board or other entity designated to
receive such complaints for review and appropriate action.
(f) The Health and Human Services Commission by rule shall
adopt minimum standards for the investigation of suspected abuse,
neglect, or exploitation of an elderly or disabled person under
this section.
(g) A rule or policy adopted by a state agency or
institution under Subsection (c) must be consistent with the
minimum standards adopted by the Health and Human Services
Commission.
Added by Acts 1999, 76th Leg., ch. 907, § 34, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 355, § 7, eff. Sept. 1,
2001.
§ 48.302. APPROVAL OF RULES. The Health and Human
Services Commission shall review and approve the rules to ensure
that all agencies implement appropriate standards for the conduct
of investigations and that uniformity exists among agencies in the
investigation and resolution of reports.
Added by Acts 1999, 76th Leg., ch. 907, § 34, eff. Sept. 1, 1999.
§ 48.303. MEMORANDUM OF UNDERSTANDING. (a) The
department shall adopt a memorandum of understanding with each
state agency that operates, licenses, certifies, or registers a
facility in which elderly or disabled persons are located that
clarifies each agency's responsibility under this chapter.
(b) Not later than the last month of each state fiscal year,
the department and the other agencies shall review and update the
memorandum.
Added by Acts 1987, 70th Leg., ch. 1052, § 5.01(a), eff. Sept. 1,
1987. Renumbered from § 48.022 and amended by Acts 1999, 76th
Leg., ch. 907, § 35, eff. Sept. 1, 1999.
§ 48.304. STATISTICS. (a) Each state agency, 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 compile and
maintain statistics on the incidence of abuse, neglect, or
exploitation of elderly or disabled persons that occurs in the
facilities.
(b) The agency shall make the statistics available to the
Health and Human Services Commission on request.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, § 1, eff. Sept.
1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, § 1,
eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, § 14, eff.
Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, § 36, eff. Sept. 1,
1999.
SUBCHAPTER H. INVESTIGATIONS OF PROVIDERS OF HOME AND
COMMUNITY-BASED SERVICES CONTRACTING WITH TDMHMR
§ 48.351. DEFINITIONS. In this subchapter:
(1) "Community center" has the meaning assigned by
Section 531.002, Health and Safety Code.
(2) "Department facility" means:
(A) a facility listed in Section 532.001, Health
and Safety Code; or
(B) a state-operated community services program
operated by the Texas Department of Mental Health and Mental
Retardation or a facility of the department.
(3) "Home and community-based services" means the
services described by 42 U.S.C. Section 1396n(c) that are provided
by a person under a contract with the Texas Department of Mental
Health and Mental Retardation.
(4) "Local mental health authority" has the meaning
assigned by Section 531.002, Health and Safety Code.
(5) "Local mental retardation authority" has the
meaning assigned by Section 531.002, Health and Safety Code.
(6) "Provider" means a person who contracts with the
Texas Department of Mental Health and Mental Retardation to provide
home and community-based services. The term includes an officer,
employee, or agent of the provider, and any person with whom the
provider subcontracts for the provision of those services.
Added by Acts 1999, 76th Leg., ch. 907, § 37, eff. Sept. 1, 1999.
§ 48.352. INVESTIGATION OF REPORTS RELATING TO HOME AND
COMMUNITY-BASED SERVICES. (a) The department shall receive and
investigate reports of abuse, neglect, or exploitation of an
individual receiving home and community-based services from a
provider if the provider is or may be the person alleged to have
committed the abuse, neglect, or exploitation.
(b) The department shall receive and investigate reports of
abuse, neglect, or exploitation of an elderly or disabled
individual residing in a residence owned, operated, or controlled
by a provider in which the home and community-based services are
provided, regardless of whether the individual receives those
services, if the provider is or may be the person alleged to have
committed the abuse, neglect, or exploitation.
(c) If the provider is a department facility, a local mental
health or mental retardation authority, or a community center,
Subchapter F also applies.
Added by Acts 1999, 76th Leg., ch. 907, § 37, eff. Sept. 1, 1999.
§ 48.353. ACTION ON REPORT. (a) On receipt by the
department of a report of alleged abuse, neglect, or exploitation
under this subchapter, the department shall initiate a prompt and
thorough investigation as needed to evaluate the accuracy of the
report and to assess the need for emergency protective services,
unless the department determines, in accordance with rules adopted
under Subchapter F, that the report:
(1) is frivolous or patently without a factual basis;
or
(2) does not concern abuse, neglect, or exploitation.
(b) On learning that a provider is or may be the person who
committed the alleged abuse, neglect, or exploitation, the
department shall notify the following persons that the department
has initiated an investigation:
(1) the chief executive of the provider and any other
personnel of the provider as necessary to facilitate the
investigation;
(2) the designated administrator at the Texas
Department of Mental Health and Mental Retardation; and
(3) any other governmental entity that the
investigator believes should be notified as necessary to assist in
the investigation or in the provision of services.
(c) The provider shall:
(1) cooperate completely with the investigation;
(2) provide complete access to all sites owned,
operated, or controlled by the provider; and
(3) provide complete access to clients and client
records.
(d) The department shall adopt rules for conducting
investigations under this subchapter.
Added by Acts 1999, 76th Leg., ch. 907, § 37, eff. Sept. 1, 1999.
§ 48.354. FORWARDING OF COMPLETED INVESTIGATION
REPORT. (a) The department shall forward to the chief executive
of a provider and to the designated administrator at the Texas
Department of Mental Health and Mental Retardation:
(1) a copy of any report the department received under
this subchapter; and
(2) a copy of the department's investigation findings
and report.
(b) The allegation report and the investigation report
shall be edited to protect the identity of the person who made the
report under Section 48.051.
Added by Acts 1999, 76th Leg., ch. 907, § 37, eff. Sept. 1, 1999.
§ 48.355. PROVISION OF SERVICES TO RECIPIENT OF HOME AND
COMMUNITY-BASED SERVICES. (a) The Texas Department of Mental
Health and Mental Retardation is responsible for providing services
to an individual receiving home and community-based services as
necessary to alleviate abuse, neglect, or exploitation if the
department determines that the person needs the services because of
the failure of a provider to furnish contracted services.
(b) The department may provide emergency services necessary
to immediately protect the individual from serious physical harm or
death and, if necessary, obtain an emergency order for protective
services under Section 48.208.
(c) The department and the Texas Department of Mental Health
and Mental Retardation shall develop joint rules governing the
provision of services under this section.
Added by Acts 1999, 76th Leg., ch. 907, § 37, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 75, § 3, eff. May 14, 2001.
§ 48.356. PROVISION OF SERVICES TO INDIVIDUAL NOT
RECEIVING HOME AND COMMUNITY-BASED SERVICES. The department shall
provide services in accordance with Subchapter E to an elderly or
disabled individual who does not receive home and community-based
services but who lives in a residence owned, operated, or
controlled by a provider in which home and community-based services
are provided.
Added by Acts 1999, 76th Leg., ch. 907, § 37, eff. Sept. 1, 1999.
§ 48.357. RESPONSIBILITIES OF TDMHMR. (a) At least
once each calendar quarter, the Texas Department of Mental Health
and Mental Retardation shall provide to the department:
(1) the name and address of each provider who has a
contract with the Texas Department of Mental Health and Mental
Retardation to provide home and community-based services;
(2) the name and telephone number of the chief
executive of each provider described by Subdivision (1); and
(3) the address of each residence owned, operated, or
controlled by each provider described by Subdivision (1) in which
home and community-based services are provided.
(b) The Texas Department of Mental Health and Mental
Retardation shall make available to the department the name and
telephone number of each person to notify if an individual
receiving home and community-based services needs services to
alleviate abuse, neglect, or exploitation.
(c) The Texas Department of Mental Health and Mental
Retardation shall require each provider to:
(1) provide to the Texas Department of Mental Health
and Mental Retardation each calendar quarter the provider's
business address and telephone number and the name of the
provider's chief executive;
(2) provide to the Texas Department of Mental Health
and Mental Retardation a telephone number at which the chief
executive, or a designated representative, can be reached during
normal business hours, if different from the telephone number
required by Subdivision (1);
(3) provide to the Texas Department of Mental Health
and Mental Retardation each calendar quarter the name, if any,
address, and telephone number of any residence owned, operated, or
controlled by the provider in which home and community-based
services are provided; and
(4) post in a conspicuous location inside any
residence owned, operated, or controlled by the provider in which
home and community-based services are provided, a sign that states:
(A) the name, address, and telephone number of
the provider;
(B) the effective date of the provider's contract
with the Texas Department of Mental Health and Mental Retardation
to provide home and community-based services; and
(C) the name of the legal entity that contracted
with the Texas Department of Mental Health and Mental Retardation
to provide those services.
Added by Acts 1999, 76th Leg., ch. 907, § 37, eff. Sept. 1, 1999.
SUBCHAPTER I. EMPLOYEE MISCONDUCT REGISTRY
§ 48.401. DEFINITIONS. In this subchapter:
(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.
(2) "Employee" means a person who:
(A) works for an agency;
(B) provides personal care services, active
treatment, or any other personal services to an individual
receiving agency services; and
(C) is not licensed by the state to perform the
services the person performs for the agency.
(3) "Employee misconduct registry" means the employee
misconduct registry established under Chapter 253, Health and
Safety Code.
(4) "Executive director" means the executive director
of the Department of Protective and Regulatory Services.
(5) "Reportable conduct" includes:
(A) abuse or neglect that causes or may cause
death or harm to an individual receiving agency services;
(B) sexual abuse of an individual receiving
agency services;
(C) financial exploitation of an individual
receiving agency services in an amount of $25 or more; and
(D) emotional, verbal, or psychological abuse
that causes harm to an individual receiving agency services.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
Amended by Acts 2003, 78th Leg., ch. 198, § 2.113, eff. Sept. 1,
2003.
§ 48.402. RULES RELATING TO REPORTABLE CONDUCT. The
department may adopt rules to further define reportable conduct.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
§ 48.403. FINDING. After an investigation and
following the procedures of this subchapter, if the department
confirms or validates the occurrence of reportable conduct by an
employee, the department shall forward the finding to the Texas
Department of Human Services to record the reportable conduct in
the employee misconduct registry under Section 253.007, Health and
Safety Code.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
§ 48.404. NOTICE OF FINDING. (a) The department shall
give written notice of the department's findings under Section
48.403 to the employee. The notice must include:
(1) a brief summary of the department's findings;
(2) a statement of the employee's right to a hearing on
the department's findings; and
(3) a statement notifying the employee that if the
employee fails to timely respond to the notice, the finding that the
employee committed the reportable conduct will be recorded in the
employee misconduct registry under Section 253.007, Health and
Safety Code.
(b) Not later than the 30th day after the date the notice is
received, the employee notified may accept the finding of the
department made under Section 48.403 or may make a written request
for a hearing on that finding.
(c) If the employee notified of the violation accepts the
finding of the department or fails to timely respond to the notice,
the executive director or the executive director's designee shall
issue an order approving the finding and ordering that the
department's findings be forwarded to the Texas Department of Human
Services to be recorded in the employee misconduct registry under
Section 253.007, Health and Safety Code.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
§ 48.405. HEARING; ORDER. (a) If the employee
requests a hearing, the department shall:
(1) set a hearing;
(2) give written notice of the hearing to the
employee; and
(3) designate a hearings examiner to conduct the
hearing.
(b) The hearings examiner shall make findings of fact and
conclusions of law and shall promptly issue to the executive
director or the executive director's designee a proposal for
decision as to the occurrence of the reportable conduct.
(c) Based on the findings of fact and conclusions of law and
the recommendations of the hearings examiner, the executive
director or the executive director's designee by order may find
that the reportable conduct has occurred. If the executive
director or the executive director's designee finds that reportable
conduct has occurred, the executive director or the executive
director's designee shall issue an order approving the finding.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
§ 48.406. NOTICE; JUDICIAL REVIEW. (a) The
department shall give notice of the order under Section 48.405 to
the employee alleged to have committed the reportable conduct. The
notice must include:
(1) separate statements of the findings of fact and
conclusions of law;
(2) a statement of the right of the employee to
judicial review of the order; and
(3) a statement that the reportable conduct will be
recorded in the employee misconduct registry under Section 253.007,
Health and Safety Code, if:
(A) the employee does not request judicial review
of the finding; or
(B) the finding is sustained by the court.
(b) Not later than the 30th day after the date the decision
becomes final as provided by Chapter 2001, Government Code, the
employee may file a petition for judicial review contesting the
finding of the reportable conduct. If the employee does not request
judicial review of the finding, the department shall send a record
of the department's findings to the Texas Department of Human
Services to record in the employee misconduct registry under
Section 253.007, Health and Safety Code.
(c) Judicial review of the order:
(1) is instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(d) If the court sustains the finding of the occurrence of
the reportable conduct, the department shall forward the finding of
reportable conduct to the Texas Department of Human Services to
record the reportable conduct in the employee misconduct registry
under Section 253.007, Health and Safety Code.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
§ 48.407. INFORMAL PROCEEDINGS. The department by rule
shall adopt procedures governing informal proceedings held in
compliance with Section 2001.056, Government Code.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
§ 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT
REGISTRY. (a) When the department forwards a finding of
reportable conduct to the Texas Department of Human Services for
recording in the employee misconduct registry, the department shall
provide the employee's name, the employee's address, the employee's
social security number, if available, the name of the agency, the
address of the agency, the date the reportable conduct occurred,
and a description of the reportable conduct.
(b) If a governmental agency of another state or the federal
government finds that an employee has committed an act that
constitutes reportable conduct, the department may send to the
Texas Department of Human Services, for recording in the employee
misconduct registry, the employee's name, the employee's address,
the employee's social security number, if available, the name of
the agency, the address of the agency, the date of the act, and a
description of the act.
Added by Acts 2001, 77th Leg., ch. 1267, § 1, eff. Jan. 1, 2002.
