HUMAN RESOURCES CODETITLE 2. DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICESSUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; CHILD WELFARE AND PROTECTIVE SERVICESCHAPTER 48. INVESTIGATIONS AND PROTECTIVE SERVICES FOR ELDERLY AND DISABLED PERSONSSUBCHAPTER A. GENERAL PROVISIONSSec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 274, ch. 51, Sec. 1, eff. Aug. 29, 1983; Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 264, Sec. 16, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 568, Sec. 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 1, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(15), 8.041, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 51, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Renumbered from Sec. 48.085 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 3, eff. Sept. 1, 1999.
Sec. 48.004. RISK ASSESSMENT. The executive commissioner by rule shall develop and maintain risk assessment criteria for use by department personnel in determining whether an elderly or disabled person is in imminent risk of abuse, neglect, or exploitation or in a state of abuse, neglect, or exploitation and needs protective services. The criteria must:(1) provide for a comprehensive assessment of the person's:(A) environmental, physical, medical, mental health, and financial condition;(B) social interaction and support; and(C) need for legal intervention; and(2) specify the circumstances under which a caseworker must consult with a supervisor regarding a case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.06, eff. September 1, 2005.
Sec. 48.005. MAINTENANCE OF RECORDS. Notwithstanding Chapter 441, Government Code, or any other law, and subject to the availability of funds, the department shall maintain in an electronic format a summary of all records related to investigations of reports made under Section 48.051 that includes only critical information with respect to those investigations that will enable the department to research the history of a person's involvement in the investigated cases.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.07, eff. September 1, 2005.
Sec. 48.006. COMMUNITY SATISFACTION SURVEY. (a) Subject to the availability of funds, the department shall develop a community satisfaction survey that solicits information regarding the department's performance with respect to providing investigative and adult protective services. In each region, the department shall send the survey at least annually to:(1) stakeholders in the adult protective services system, including local law enforcement agencies and prosecutors' offices;(2) protective services agencies, including nonprofit agencies; and(3) courts with jurisdiction over probate matters.(b) The department shall send the results of each region's survey to:(1) the region for evaluation by regional and program administrators and implementation of changes necessary to address community concerns;(2) the presiding judge of the statutory probate courts in that region; and(3) courts with jurisdiction over probate matters in that region.(c) The department may not include any confidential information in the results of the survey provided under Subsection (b)(2) or (3) unless ordered by a court.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.07, eff. September 1, 2005.
Sec. 48.007. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The Health and Human Services Commission, the department, the Department of Aging and Disability Services, the office of independent ombudsman for state supported living centers, and the Health and Human Services Commission's office of inspector general shall enter into a memorandum of understanding regarding investigations of alleged abuse, neglect, or exploitation of residents or clients of state supported living centers or the ICF-MR component of the Rio Grande State Center that delineates the responsibilities of each agency under this chapter, Chapter 261, Family Code, and Chapter 555, Health and Safety Code, and amend the memorandum of understanding as necessary to reflect changes in those responsibilities. During the negotiation of the memorandum of understanding, the agencies shall jointly determine whether the forensic training received by relevant staff of the Department of Family and Protective Services is adequate. Specifically, the agencies shall assess and, if necessary, develop a plan to enhance the ability of department staff to identify and report incidences that constitute a potential criminal offense. The Health and Human Services Commission is the final arbiter of any dispute regarding the memorandum of understanding under this section.
Added by Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 25, eff. June 11, 2009.
SUBCHAPTER B. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION: IMMUNITIESSec. 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, including a disabled person receiving services as described by Section 48.252, shall report the information required by Subsection (d) immediately to the department.(b) If a person has cause to believe that an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency, 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.(e) If a person who makes a report under this section chooses to give self-identifying information, the caseworker who investigates the report shall contact the person if necessary to obtain any additional information required to assist the person who is the subject of the report.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(22), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 8.043, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 6, 15(1), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 54, eff. Sept. 1, 1997. Renumbered from Sec. 48.036 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 205, Sec. 1, eff. May 21, 2001.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.08, eff. September 1, 2005.Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 26, eff. June 11, 2009.
Sec. 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, except that the offense is a state jail felony if it is shown on the trial of the offense that the disabled person was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the disabled person had suffered serious bodily injury as a result of the abuse, neglect, or exploitation.(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, Sec. 5.03, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(21), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 7, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1278, Sec. 1, eff. Sept. 1, 1997. Renumbered from Sec. 48.0361 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 6, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 27, eff. June 11, 2009.
Sec. 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, Sec. 55, eff. Sept. 1, 1997. Renumbered from Sec. 48.0362 by Acts 1999, 76th Leg., ch. 907, Sec. 7, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 10, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 8, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 205, Sec. 2, eff. May 21, 2001.
SUBCHAPTER C. CONFIDENTIALITYSec. 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 executive commissioner shall adopt rules providing 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.(d-1) Subject to Subsection (e-1), the executive commissioner shall adopt rules providing for the release, on request, by the department or investigating state agency of otherwise confidential information relating to a person who is the subject of a report or investigation of abuse, neglect, or exploitation or to whom the department has provided protective services, to:(1) a court that has a matter pending before it that involves the person;(2) the attorney ad litem or any other legal representative, other than a guardian, appointed for the person; and(3) the person's legal guardian.(e) The executive commissioner may adopt rules relating to the release of information by the department or investigating state agency that is 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. The executive commissioner shall adopt rules, subject to Subsection (e-1), that provide for the release, on request, of otherwise confidential information in the deceased person's record to the personal representative appointed for the person's estate.(e-1) Information released by the department or an investigating state agency under Subsection (d-1) or to a personal representative under Subsection (e) may not include the identity of the person who made the report of abuse, neglect, or exploitation.(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.(g) The department may establish procedures to exchange with a community service provider or local governmental entity confidential information relating to a report made under Section 48.051(a) that is necessary for the department, provider, or entity to provide protective services, health care services, housing services, or social services to the person who is the subject of the report. An exchange of information under this subsection does not affect whether the information is subject to disclosure under Chapter 552, Government Code.(g-1) The executive commissioner by rule shall provide policies and procedures that are designed to guard against the unauthorized release or dissemination of confidential information that is exchanged under Subsection (g).
Added by Acts 1995, 74th Leg., ch. 303, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 58, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, Sec. 10, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.09, eff. September 1, 2005.
Sec. 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, Sec. 12, eff. Sept. 1, 1999.
Sec. 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, Sec. 13, eff. Sept. 1, 1999. Renumbered from Sec. 48.0381 by Acts 2001, 77th Leg., ch. 75, Sec. 1, eff. May 14, 2001.
SUBCHAPTER D. INVESTIGATIONS BY ALL AGENCIESSec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.04, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, Sec. 8, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 56, eff. Sept. 1, 1997. Renumbered from Sec. 48.037 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 14, eff. Sept. 1, 1999.
Sec. 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, Sec. 15, eff. Sept. 1, 1999.
Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) The department shall develop and implement a system to ensure that, to the greatest extent possible, investigations conducted by the department that involve especially complex issues of abuse, neglect, or exploitation, such as issues associated with identity theft and other forms of financial exploitation, are:(1) assigned to personnel who have experience and training in those issues; and(2) monitored by a special task unit for complex cases.(b) Each county with a population of 250,000 or more shall appoint persons to serve as standing members of a special task unit to monitor cases that arise in the county and require monitoring as provided by Subsection (a). The standing members of each special task unit must include:(1) a provider of mental health services or aging services or a representative of a nonprofit entity serving persons with disabilities;(2) a representative of a law enforcement agency; and(3) a legal expert.(c) In addition to the standing members specified by Subsection (b), the special task unit:(1) must include, for purposes of monitoring a particular case, the caseworker on the case and the caseworker's supervisor; and(2) may include a financial forensics expert and any other person with expertise that would be useful in monitoring a particular case.(d) The department shall develop and make available to each county described by Subsection (b) a manual to assist the county in establishing and operating the special task unit required by this section. The manual must describe:(1) the purpose and potential benefits of the unit;(2) a description of the monitoring process the unit is expected to follow and potential problems the unit may encounter;(3) the composition and administration of the unit; and(4) the department's criteria for selecting cases to be monitored by the unit.(e) Before the special task unit makes a recommendation that a guardian be appointed for a person in a case being monitored by the unit, the unit shall thoroughly consider all less-restrictive alternatives for legal intervention in the case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.10(a), eff. September 1, 2005.
Sec. 48.1522. REPORTS OF CRIMINAL CONDUCT TO LAW ENFORCEMENT AGENCY. (a) Except as provided by Subsection (b), if during the course of the department's or another state agency's investigation of reported abuse, neglect, or exploitation a caseworker of the department or other state agency, as applicable, or the caseworker's supervisor has cause to believe that the elderly or disabled person has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker or supervisor shall:(1) immediately notify an appropriate law enforcement agency; and(2) provide the law enforcement agency with a copy of the investigation report of the department or other state agency, as applicable, in a timely manner.(b) If during the course of the department's investigation of reported abuse, neglect, or exploitation a caseworker of the department or the caseworker's supervisor has cause to believe that a disabled person who is a resident or client of a state supported living center or the ICF-MR component of the Rio Grande State Center has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker shall immediately notify the commission's office of inspector general and promptly provide the commission's office of inspector general with a copy of the department's investigation report.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.11, eff. September 1, 2005.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 28, eff. June 11, 2009.
Sec. 48.1523. MANAGEMENT REVIEW FOLLOWING CERTAIN INVESTIGATIONS. If the department receives and investigates a report made under Section 48.051, the subject of which is a person with respect to whom the department received and investigated two previous reports under that section and closed those investigations, an adult protective services supervisor shall:(1) classify the case as a recidivist case;(2) review the reports and investigation files concerning that person; and(3) assist the caseworker and supervisor investigating the third report in developing a long-term plan for resolving the issues involved in the case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.12, eff. September 1, 2005.
Sec. 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, Sec. 15, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Aug. 30, 1993. Amended by Acts 1995, 74th Leg., ch. 303, Sec. 10, eff. Sept. 1, 1995. Renumbered from Sec. 48.0385 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 16, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 59, eff. Sept. 1, 1997. Renumbered from Sec. 48.103 by Acts 1999, 76th Leg., ch. 907, Sec. 17, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.057 by Acts 1999, 76th Leg., ch. 907, Sec. 18, eff. Sept. 1, 1999.
Sec. 48.159. INTERNAL REVIEW OF DEPARTMENT INVESTIGATION. The department shall establish procedures for conducting an internal review of completed investigations conducted by the department under this chapter to:(1) determine whether information obtained during the intake process was sufficient and accurate;(2) assess whether telephone calls were appropriately routed;(3) assess whether investigations were appropriately classified and prioritized;(4) evaluate the case reports for any special issues or requirements;(5) assess whether appropriate law enforcement agencies were notified of any suspected criminal conduct; and(6) identify other relevant information to enable the department to take any corrective action necessary to improve the process of conducting investigations under this chapter.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.13, eff. September 1, 2005.
SUBCHAPTER E. PROVISION OF SERVICES; EMERGENCY PROTECTIONSec. 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, Sec. 21, eff. Sept. 1, 1999.
Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY. (a) 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 provision;(6) whether the elderly or disabled person desires the services;(7) whether the person needs legal intervention to resolve the person's abuse, neglect, or exploitation and, if so, what type of intervention is needed; and(8) other pertinent data.(b) If the department or state agency, as appropriate, determines under Subsection (a)(1) that a person needs protective services, the department or agency shall, in determining how those services can be provided as required by Subsection (a)(3), determine whether the person is eligible for community-based long-term care services and whether those services are available. If the person is eligible for those services, but the services are not immediately available, the department or state agency shall ensure that the person is placed on an appropriate waiting list for the services and that the person's abuse, neglect, or exploitation is resolved before the department closes the case.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 21, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.14, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.059 by Acts 1999, 76th Leg., ch. 907, Sec. 22, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 12, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 23, eff. Sept. 1, 1999.
Sec. 48.205. PROVISION OF SERVICES. (a) Subject to the availability of funds, the department shall provide direct protective services or contract with protective services agencies for the provision of those services.(b) The department shall use existing resources and services of public and private agencies in providing protective services. If the department does not have existing resources to provide direct protective services to elderly or disabled persons, the department, subject to the availability of funds, shall contract with protective services agencies for the provision of those services, especially to elderly or disabled persons residing in rural or remote areas of this state or not previously served by the department.(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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 905, Sec. 5, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 303, Sec. 4, eff. Sept. 1, 1995. Renumbered from Sec. 48.021 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 24, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.15, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.058 by Acts 1999, 76th Leg., ch. 907, Sec. 25, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Renumbered from Sec. 48.102 by Acts 1999, 76th Leg., ch. 907, Sec. 11, eff. Sept. 1, 1999.
Sec. 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.(c-1) Notwithstanding Subsection (c)(4), in lieu of a medical report described by Subsection (c)(4), the petition may include an assessment of the elderly or disabled person's health status as described by Subsection (c-2) or psychological status as described by Subsection (c-3), or a medical opinion of the elderly or disabled person's health status as described by Subsection (c-4), if the department determines, after making a good faith effort, that a physician from whom the department may obtain the medical report is unavailable. The department shall ensure that the person who performs an assessment of the elderly or disabled person's health or psychological status has training and experience in performing the applicable assessment.(c-2) Except as provided by Subsection (c-4), an assessment of the elderly or disabled person's health status must be performed by a physician assistant or advanced practice nurse. The person performing the assessment shall sign a report stating:(1) that the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety;(2) whether the elderly or disabled person has provided the person's medical history to the physician assistant or advanced practice nurse, as applicable; and(3) that in the professional opinion of the physician assistant or advanced practice nurse, as applicable, the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-3) An assessment of the elderly or disabled person's psychological status must be performed by a licensed psychologist or master social worker who has training and expertise in issues related to abuse, neglect, and exploitation. The person performing the assessment shall sign a report stating:(1) that the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and(2) that in the professional opinion of the licensed psychologist or master social worker, as applicable, the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-4) A registered nurse may perform a nursing assessment of the elderly or disabled person's health status. If the registered nurse, based on the registered nurse's professional nursing judgment, determines that the elderly or disabled person is likely to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety, the registered nurse shall report that assessment to a physician. After the registered nurse reports the assessment, the physician shall sign a written opinion stating whether:(1) the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and(2) the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-5) The physician may use the registered nurse's assessment of the elderly or disabled person's health status as the basis of the physician's professional opinion under Subsection (c-4).(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.(d-1) If the court renders an order that is based on a petition including an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4), the court shall order that the elderly or disabled person be examined by a physician not later than 72 hours after the time the provision of protective services begins. After performing the examination, the physician shall sign and submit to the court a medical report stating the physician's opinion whether the elderly or disabled person is:(1) suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; and(2) physically or mentally incapable of consenting to services.(e) The emergency order expires at the end of 72 hours from the time the order is rendered unless:(1) the emergency order terminates as provided by Subsection (e-1);(2) 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; or(3) the court extends the order as provided by Subsection (e-2).(e-1) An emergency order that was rendered based on a petition that included an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4) immediately terminates if the medical report issued under Subsection (d-1) states the physician's opinion that the elderly or disabled person:(1) is not suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; or(2) is physically or mentally capable of consenting to services.(e-2) The court may extend an emergency order issued under this section for a period of not more than 30 days. An extension 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, Sec. 4, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 569, Sec. 1, eff. June 18, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 2 to 4, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 13, eff. Sept. 1, 1995. Renumbered from Sec. 48.061 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 26, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 75, Sec. 2, eff. May 14, 2001.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.16, eff. September 1, 2005.
Sec. 48.209. REFERRAL FOR GUARDIANSHIP SERVICES. (a) The department shall refer an individual to the Department of Aging and Disability Services for guardianship services under Subchapter E, Chapter 161, if the individual is:(1) a minor in the conservatorship of the department who:(A) is 16 years of age or older; and(B) the department has reason to believe will, because of a physical or mental condition, be substantially unable to provide for the individual's own food, clothing, or shelter, to care for the individual's own physical health, or to manage the individual's own financial affairs when the individual becomes an adult; or(2) an elderly or disabled person who:(A) has been found by the department to be in a state of abuse, neglect, or exploitation; and(B) the department has reason to believe is an incapacitated person as defined by Section 601(14)(B), Texas Probate Code.(b) Notwithstanding Subsection (a), if a less restrictive alternative to guardianship is appropriate and available for the individual, the department shall pursue that alternative instead of making a referral to the Department of Aging and Disability Services for guardianship services.(c) The department and the Department of Aging and Disability Services shall enter into a memorandum of understanding that sets forth in detail the roles and duties of each agency regarding the referral for guardianship services under Subsection (a) and the provision of guardianship services to individuals under Subchapter E, Chapter 161.(d) Nothing in this section shall prohibit the department from also making a referral of an individual to a court having probate jurisdiction in the county where the individual is domiciled or found, if the court has requested the department to notify the court of any individuals who may be appropriate for a court-initiated guardianship proceeding under Section 683, Texas Probate Code. In making a referral under this subsection and if requested by the court, the department shall, to the extent allowed by law, provide the court with all relevant information in the department's records relating to the individual. The court, as part of this process, may not require the department to:(1) perform the duties of a guardian ad litem or court investigator as prescribed by Section 683, Texas Probate Code; or(2) gather additional information not contained in the department's records.(e) The department may not be appointed to serve as temporary or permanent guardian for any individual.
Added by Acts 1995, 74th Leg., ch. 303, Sec. 4, eff. Sept. 1, 1995. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.042, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1039, Sec. 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 52, 53, eff. Sept. 1, 1997. Renumbered from Sec. 48.0215 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 27, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 3.02, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, Sec. 3, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, Sec. 11, eff. Sept. 1, 1995. Renumbered from Sec. 48.040 by Acts 1999, 76th Leg., ch. 907, Sec. 28, eff. Sept. 1, 1999.
Sec. 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, Sec. 29, eff. Sept. 1, 1999.
SUBCHAPTER F. INVESTIGATIONS IN CERTAIN FACILITIES, COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND MENTAL RETARDATION AUTHORITIESSec. 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, Sec. 31, eff. Sept. 1, 1999.
Sec. 48.252. INVESTIGATION OF REPORTS IN CERTAIN FACILITIES AND IN COMMUNITY CENTERS. (a) The department shall receive and investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:(1) in:(A) a mental health facility operated by the Department of State Health Services; or(B) a facility licensed under Chapter 252, Health and Safety Code;(2) in or from a community center, a local mental health authority, or a local mental retardation authority; or(3) through a program providing services to that person by contract with a mental health facility operated by the Department of State Health Services, a community center, a local mental health authority, or a local mental retardation authority.(b) The department shall receive and shall investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:(1) in a state supported living center or the ICF-MR component of the Rio Grande State Center; or(2) through a program providing services to that person by contract with a state supported living center or the ICF-MR component of the Rio Grande State Center.(c) The department by rule shall define who is "an individual with a disability receiving services."(d) 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, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 57, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1281, Sec. 1, eff. Sept. 1, 1997. Renumbered from Sec. 48.081 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 32, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 30, eff. June 11, 2009.
Sec. 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, Sec. 33, eff. Sept. 1, 1999.
Sec. 48.254. FORWARDING OF CERTAIN REPORTS. In accordance with department rules, the department shall forward a copy of the initial intake report and a copy of the completed investigation report relating to alleged or suspected abuse, neglect, or exploitation to the appropriate facility, community center, mental health authority, mental retardation authority, or program providing mental health or mental retardation services under contract with the facility, community center, or authority.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 31, eff. June 11, 2009.
Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER. (a) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall develop joint rules to facilitate investigations in state mental health facilities and state supported living centers.(b) The department, the Department of Aging and Disability Services, and the Department of State Health Services by joint rules shall establish procedures for resolving disagreements between the department and the Department of Aging and Disability Services or the Department of State Health Services concerning the department's investigation findings.(c) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall develop joint rules to facilitate investigations in community centers, mental health authorities, and mental retardation authorities.(c-1) The executive commissioner shall adopt rules regarding investigations in a facility licensed under Chapter 252, Health and Safety Code, to ensure that those investigations are as consistent as practicable with other investigations conducted under this subchapter.(d) A confirmed investigation finding by the department may not be changed by a superintendent of a state mental health facility, by a director of a state supported living center, by a director of a community center, or by a mental health authority or mental retardation authority.(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, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 32, eff. June 11, 2009.
Sec. 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND INVESTIGATIONS. (a) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall jointly develop and implement a single system to track reports and investigations under this subchapter.(b) To facilitate implementation of the system, the department, the Department of Aging and Disability Services, and the Department of State Health Services shall use appropriate methods of measuring the number and outcome of reports and investigations under this subchapter.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 33, eff. June 11, 2009.
SUBCHAPTER G. INVESTIGATIONS IN CERTAIN FACILITIESSec. 48.301. INVESTIGATION OF REPORTS IN OTHER STATE FACILITIES. (a) If the department receives a report of suspected abuse, neglect, or exploitation of an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, in a facility operated, licensed, certified, or registered by a state agency, 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 that may receive reports under this section 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, Sec. 34, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 355, Sec. 7, eff. Sept. 1, 2001.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 34, eff. June 11, 2009.
Sec. 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, Sec. 34, eff. Sept. 1, 1999.
Sec. 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, Sec. 5.01(a), eff. Sept. 1, 1987. Renumbered from Sec. 48.022 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 35, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 14, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 36, eff. Sept. 1, 1999.
SUBCHAPTER H. INVESTIGATIONS OF PROVIDERS OF HOME AND COMMUNITY-BASED SERVICES CON
HUMAN RESOURCES CODETITLE 2. DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICESSUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; CHILD WELFARE AND PROTECTIVE SERVICESCHAPTER 48. INVESTIGATIONS AND PROTECTIVE SERVICES FOR ELDERLY AND DISABLED PERSONSSUBCHAPTER A. GENERAL PROVISIONSSec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 274, ch. 51, Sec. 1, eff. Aug. 29, 1983; Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 264, Sec. 16, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 568, Sec. 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 1, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(15), 8.041, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 51, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Renumbered from Sec. 48.085 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 3, eff. Sept. 1, 1999.
Sec. 48.004. RISK ASSESSMENT. The executive commissioner by rule shall develop and maintain risk assessment criteria for use by department personnel in determining whether an elderly or disabled person is in imminent risk of abuse, neglect, or exploitation or in a state of abuse, neglect, or exploitation and needs protective services. The criteria must:(1) provide for a comprehensive assessment of the person's:(A) environmental, physical, medical, mental health, and financial condition;(B) social interaction and support; and(C) need for legal intervention; and(2) specify the circumstances under which a caseworker must consult with a supervisor regarding a case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.06, eff. September 1, 2005.
Sec. 48.005. MAINTENANCE OF RECORDS. Notwithstanding Chapter 441, Government Code, or any other law, and subject to the availability of funds, the department shall maintain in an electronic format a summary of all records related to investigations of reports made under Section 48.051 that includes only critical information with respect to those investigations that will enable the department to research the history of a person's involvement in the investigated cases.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.07, eff. September 1, 2005.
Sec. 48.006. COMMUNITY SATISFACTION SURVEY. (a) Subject to the availability of funds, the department shall develop a community satisfaction survey that solicits information regarding the department's performance with respect to providing investigative and adult protective services. In each region, the department shall send the survey at least annually to:(1) stakeholders in the adult protective services system, including local law enforcement agencies and prosecutors' offices;(2) protective services agencies, including nonprofit agencies; and(3) courts with jurisdiction over probate matters.(b) The department shall send the results of each region's survey to:(1) the region for evaluation by regional and program administrators and implementation of changes necessary to address community concerns;(2) the presiding judge of the statutory probate courts in that region; and(3) courts with jurisdiction over probate matters in that region.(c) The department may not include any confidential information in the results of the survey provided under Subsection (b)(2) or (3) unless ordered by a court.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.07, eff. September 1, 2005.
Sec. 48.007. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The Health and Human Services Commission, the department, the Department of Aging and Disability Services, the office of independent ombudsman for state supported living centers, and the Health and Human Services Commission's office of inspector general shall enter into a memorandum of understanding regarding investigations of alleged abuse, neglect, or exploitation of residents or clients of state supported living centers or the ICF-MR component of the Rio Grande State Center that delineates the responsibilities of each agency under this chapter, Chapter 261, Family Code, and Chapter 555, Health and Safety Code, and amend the memorandum of understanding as necessary to reflect changes in those responsibilities. During the negotiation of the memorandum of understanding, the agencies shall jointly determine whether the forensic training received by relevant staff of the Department of Family and Protective Services is adequate. Specifically, the agencies shall assess and, if necessary, develop a plan to enhance the ability of department staff to identify and report incidences that constitute a potential criminal offense. The Health and Human Services Commission is the final arbiter of any dispute regarding the memorandum of understanding under this section.
Added by Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 25, eff. June 11, 2009.
SUBCHAPTER B. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION: IMMUNITIESSec. 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, including a disabled person receiving services as described by Section 48.252, shall report the information required by Subsection (d) immediately to the department.(b) If a person has cause to believe that an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency, 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.(e) If a person who makes a report under this section chooses to give self-identifying information, the caseworker who investigates the report shall contact the person if necessary to obtain any additional information required to assist the person who is the subject of the report.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(22), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 8.043, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 6, 15(1), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 54, eff. Sept. 1, 1997. Renumbered from Sec. 48.036 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 205, Sec. 1, eff. May 21, 2001.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.08, eff. September 1, 2005.Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 26, eff. June 11, 2009.
Sec. 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, except that the offense is a state jail felony if it is shown on the trial of the offense that the disabled person was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the disabled person had suffered serious bodily injury as a result of the abuse, neglect, or exploitation.(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, Sec. 5.03, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(21), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 7, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1278, Sec. 1, eff. Sept. 1, 1997. Renumbered from Sec. 48.0361 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 6, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 27, eff. June 11, 2009.
Sec. 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, Sec. 55, eff. Sept. 1, 1997. Renumbered from Sec. 48.0362 by Acts 1999, 76th Leg., ch. 907, Sec. 7, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 10, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 8, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 205, Sec. 2, eff. May 21, 2001.
SUBCHAPTER C. CONFIDENTIALITYSec. 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 executive commissioner shall adopt rules providing 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.(d-1) Subject to Subsection (e-1), the executive commissioner shall adopt rules providing for the release, on request, by the department or investigating state agency of otherwise confidential information relating to a person who is the subject of a report or investigation of abuse, neglect, or exploitation or to whom the department has provided protective services, to:(1) a court that has a matter pending before it that involves the person;(2) the attorney ad litem or any other legal representative, other than a guardian, appointed for the person; and(3) the person's legal guardian.(e) The executive commissioner may adopt rules relating to the release of information by the department or investigating state agency that is 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. The executive commissioner shall adopt rules, subject to Subsection (e-1), that provide for the release, on request, of otherwise confidential information in the deceased person's record to the personal representative appointed for the person's estate.(e-1) Information released by the department or an investigating state agency under Subsection (d-1) or to a personal representative under Subsection (e) may not include the identity of the person who made the report of abuse, neglect, or exploitation.(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.(g) The department may establish procedures to exchange with a community service provider or local governmental entity confidential information relating to a report made under Section 48.051(a) that is necessary for the department, provider, or entity to provide protective services, health care services, housing services, or social services to the person who is the subject of the report. An exchange of information under this subsection does not affect whether the information is subject to disclosure under Chapter 552, Government Code.(g-1) The executive commissioner by rule shall provide policies and procedures that are designed to guard against the unauthorized release or dissemination of confidential information that is exchanged under Subsection (g).
Added by Acts 1995, 74th Leg., ch. 303, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 58, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, Sec. 10, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.09, eff. September 1, 2005.
Sec. 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, Sec. 12, eff. Sept. 1, 1999.
Sec. 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, Sec. 13, eff. Sept. 1, 1999. Renumbered from Sec. 48.0381 by Acts 2001, 77th Leg., ch. 75, Sec. 1, eff. May 14, 2001.
SUBCHAPTER D. INVESTIGATIONS BY ALL AGENCIESSec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.04, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, Sec. 8, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 56, eff. Sept. 1, 1997. Renumbered from Sec. 48.037 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 14, eff. Sept. 1, 1999.
Sec. 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, Sec. 15, eff. Sept. 1, 1999.
Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) The department shall develop and implement a system to ensure that, to the greatest extent possible, investigations conducted by the department that involve especially complex issues of abuse, neglect, or exploitation, such as issues associated with identity theft and other forms of financial exploitation, are:(1) assigned to personnel who have experience and training in those issues; and(2) monitored by a special task unit for complex cases.(b) Each county with a population of 250,000 or more shall appoint persons to serve as standing members of a special task unit to monitor cases that arise in the county and require monitoring as provided by Subsection (a). The standing members of each special task unit must include:(1) a provider of mental health services or aging services or a representative of a nonprofit entity serving persons with disabilities;(2) a representative of a law enforcement agency; and(3) a legal expert.(c) In addition to the standing members specified by Subsection (b), the special task unit:(1) must include, for purposes of monitoring a particular case, the caseworker on the case and the caseworker's supervisor; and(2) may include a financial forensics expert and any other person with expertise that would be useful in monitoring a particular case.(d) The department shall develop and make available to each county described by Subsection (b) a manual to assist the county in establishing and operating the special task unit required by this section. The manual must describe:(1) the purpose and potential benefits of the unit;(2) a description of the monitoring process the unit is expected to follow and potential problems the unit may encounter;(3) the composition and administration of the unit; and(4) the department's criteria for selecting cases to be monitored by the unit.(e) Before the special task unit makes a recommendation that a guardian be appointed for a person in a case being monitored by the unit, the unit shall thoroughly consider all less-restrictive alternatives for legal intervention in the case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.10(a), eff. September 1, 2005.
Sec. 48.1522. REPORTS OF CRIMINAL CONDUCT TO LAW ENFORCEMENT AGENCY. (a) Except as provided by Subsection (b), if during the course of the department's or another state agency's investigation of reported abuse, neglect, or exploitation a caseworker of the department or other state agency, as applicable, or the caseworker's supervisor has cause to believe that the elderly or disabled person has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker or supervisor shall:(1) immediately notify an appropriate law enforcement agency; and(2) provide the law enforcement agency with a copy of the investigation report of the department or other state agency, as applicable, in a timely manner.(b) If during the course of the department's investigation of reported abuse, neglect, or exploitation a caseworker of the department or the caseworker's supervisor has cause to believe that a disabled person who is a resident or client of a state supported living center or the ICF-MR component of the Rio Grande State Center has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker shall immediately notify the commission's office of inspector general and promptly provide the commission's office of inspector general with a copy of the department's investigation report.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.11, eff. September 1, 2005.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 28, eff. June 11, 2009.
Sec. 48.1523. MANAGEMENT REVIEW FOLLOWING CERTAIN INVESTIGATIONS. If the department receives and investigates a report made under Section 48.051, the subject of which is a person with respect to whom the department received and investigated two previous reports under that section and closed those investigations, an adult protective services supervisor shall:(1) classify the case as a recidivist case;(2) review the reports and investigation files concerning that person; and(3) assist the caseworker and supervisor investigating the third report in developing a long-term plan for resolving the issues involved in the case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.12, eff. September 1, 2005.
Sec. 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, Sec. 15, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Aug. 30, 1993. Amended by Acts 1995, 74th Leg., ch. 303, Sec. 10, eff. Sept. 1, 1995. Renumbered from Sec. 48.0385 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 16, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 59, eff. Sept. 1, 1997. Renumbered from Sec. 48.103 by Acts 1999, 76th Leg., ch. 907, Sec. 17, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.057 by Acts 1999, 76th Leg., ch. 907, Sec. 18, eff. Sept. 1, 1999.
Sec. 48.159. INTERNAL REVIEW OF DEPARTMENT INVESTIGATION. The department shall establish procedures for conducting an internal review of completed investigations conducted by the department under this chapter to:(1) determine whether information obtained during the intake process was sufficient and accurate;(2) assess whether telephone calls were appropriately routed;(3) assess whether investigations were appropriately classified and prioritized;(4) evaluate the case reports for any special issues or requirements;(5) assess whether appropriate law enforcement agencies were notified of any suspected criminal conduct; and(6) identify other relevant information to enable the department to take any corrective action necessary to improve the process of conducting investigations under this chapter.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.13, eff. September 1, 2005.
SUBCHAPTER E. PROVISION OF SERVICES; EMERGENCY PROTECTIONSec. 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, Sec. 21, eff. Sept. 1, 1999.
Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY. (a) 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 provision;(6) whether the elderly or disabled person desires the services;(7) whether the person needs legal intervention to resolve the person's abuse, neglect, or exploitation and, if so, what type of intervention is needed; and(8) other pertinent data.(b) If the department or state agency, as appropriate, determines under Subsection (a)(1) that a person needs protective services, the department or agency shall, in determining how those services can be provided as required by Subsection (a)(3), determine whether the person is eligible for community-based long-term care services and whether those services are available. If the person is eligible for those services, but the services are not immediately available, the department or state agency shall ensure that the person is placed on an appropriate waiting list for the services and that the person's abuse, neglect, or exploitation is resolved before the department closes the case.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 21, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.14, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.059 by Acts 1999, 76th Leg., ch. 907, Sec. 22, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 12, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 23, eff. Sept. 1, 1999.
Sec. 48.205. PROVISION OF SERVICES. (a) Subject to the availability of funds, the department shall provide direct protective services or contract with protective services agencies for the provision of those services.(b) The department shall use existing resources and services of public and private agencies in providing protective services. If the department does not have existing resources to provide direct protective services to elderly or disabled persons, the department, subject to the availability of funds, shall contract with protective services agencies for the provision of those services, especially to elderly or disabled persons residing in rural or remote areas of this state or not previously served by the department.(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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 905, Sec. 5, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 303, Sec. 4, eff. Sept. 1, 1995. Renumbered from Sec. 48.021 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 24, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.15, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.058 by Acts 1999, 76th Leg., ch. 907, Sec. 25, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Renumbered from Sec. 48.102 by Acts 1999, 76th Leg., ch. 907, Sec. 11, eff. Sept. 1, 1999.
Sec. 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.(c-1) Notwithstanding Subsection (c)(4), in lieu of a medical report described by Subsection (c)(4), the petition may include an assessment of the elderly or disabled person's health status as described by Subsection (c-2) or psychological status as described by Subsection (c-3), or a medical opinion of the elderly or disabled person's health status as described by Subsection (c-4), if the department determines, after making a good faith effort, that a physician from whom the department may obtain the medical report is unavailable. The department shall ensure that the person who performs an assessment of the elderly or disabled person's health or psychological status has training and experience in performing the applicable assessment.(c-2) Except as provided by Subsection (c-4), an assessment of the elderly or disabled person's health status must be performed by a physician assistant or advanced practice nurse. The person performing the assessment shall sign a report stating:(1) that the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety;(2) whether the elderly or disabled person has provided the person's medical history to the physician assistant or advanced practice nurse, as applicable; and(3) that in the professional opinion of the physician assistant or advanced practice nurse, as applicable, the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-3) An assessment of the elderly or disabled person's psychological status must be performed by a licensed psychologist or master social worker who has training and expertise in issues related to abuse, neglect, and exploitation. The person performing the assessment shall sign a report stating:(1) that the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and(2) that in the professional opinion of the licensed psychologist or master social worker, as applicable, the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-4) A registered nurse may perform a nursing assessment of the elderly or disabled person's health status. If the registered nurse, based on the registered nurse's professional nursing judgment, determines that the elderly or disabled person is likely to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety, the registered nurse shall report that assessment to a physician. After the registered nurse reports the assessment, the physician shall sign a written opinion stating whether:(1) the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and(2) the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-5) The physician may use the registered nurse's assessment of the elderly or disabled person's health status as the basis of the physician's professional opinion under Subsection (c-4).(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.(d-1) If the court renders an order that is based on a petition including an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4), the court shall order that the elderly or disabled person be examined by a physician not later than 72 hours after the time the provision of protective services begins. After performing the examination, the physician shall sign and submit to the court a medical report stating the physician's opinion whether the elderly or disabled person is:(1) suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; and(2) physically or mentally incapable of consenting to services.(e) The emergency order expires at the end of 72 hours from the time the order is rendered unless:(1) the emergency order terminates as provided by Subsection (e-1);(2) 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; or(3) the court extends the order as provided by Subsection (e-2).(e-1) An emergency order that was rendered based on a petition that included an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4) immediately terminates if the medical report issued under Subsection (d-1) states the physician's opinion that the elderly or disabled person:(1) is not suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; or(2) is physically or mentally capable of consenting to services.(e-2) The court may extend an emergency order issued under this section for a period of not more than 30 days. An extension 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, Sec. 4, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 569, Sec. 1, eff. June 18, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 2 to 4, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 13, eff. Sept. 1, 1995. Renumbered from Sec. 48.061 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 26, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 75, Sec. 2, eff. May 14, 2001.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.16, eff. September 1, 2005.
Sec. 48.209. REFERRAL FOR GUARDIANSHIP SERVICES. (a) The department shall refer an individual to the Department of Aging and Disability Services for guardianship services under Subchapter E, Chapter 161, if the individual is:(1) a minor in the conservatorship of the department who:(A) is 16 years of age or older; and(B) the department has reason to believe will, because of a physical or mental condition, be substantially unable to provide for the individual's own food, clothing, or shelter, to care for the individual's own physical health, or to manage the individual's own financial affairs when the individual becomes an adult; or(2) an elderly or disabled person who:(A) has been found by the department to be in a state of abuse, neglect, or exploitation; and(B) the department has reason to believe is an incapacitated person as defined by Section 601(14)(B), Texas Probate Code.(b) Notwithstanding Subsection (a), if a less restrictive alternative to guardianship is appropriate and available for the individual, the department shall pursue that alternative instead of making a referral to the Department of Aging and Disability Services for guardianship services.(c) The department and the Department of Aging and Disability Services shall enter into a memorandum of understanding that sets forth in detail the roles and duties of each agency regarding the referral for guardianship services under Subsection (a) and the provision of guardianship services to individuals under Subchapter E, Chapter 161.(d) Nothing in this section shall prohibit the department from also making a referral of an individual to a court having probate jurisdiction in the county where the individual is domiciled or found, if the court has requested the department to notify the court of any individuals who may be appropriate for a court-initiated guardianship proceeding under Section 683, Texas Probate Code. In making a referral under this subsection and if requested by the court, the department shall, to the extent allowed by law, provide the court with all relevant information in the department's records relating to the individual. The court, as part of this process, may not require the department to:(1) perform the duties of a guardian ad litem or court investigator as prescribed by Section 683, Texas Probate Code; or(2) gather additional information not contained in the department's records.(e) The department may not be appointed to serve as temporary or permanent guardian for any individual.
Added by Acts 1995, 74th Leg., ch. 303, Sec. 4, eff. Sept. 1, 1995. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.042, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1039, Sec. 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 52, 53, eff. Sept. 1, 1997. Renumbered from Sec. 48.0215 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 27, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 3.02, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, Sec. 3, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, Sec. 11, eff. Sept. 1, 1995. Renumbered from Sec. 48.040 by Acts 1999, 76th Leg., ch. 907, Sec. 28, eff. Sept. 1, 1999.
Sec. 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, Sec. 29, eff. Sept. 1, 1999.
SUBCHAPTER F. INVESTIGATIONS IN CERTAIN FACILITIES, COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND MENTAL RETARDATION AUTHORITIESSec. 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, Sec. 31, eff. Sept. 1, 1999.
Sec. 48.252. INVESTIGATION OF REPORTS IN CERTAIN FACILITIES AND IN COMMUNITY CENTERS. (a) The department shall receive and investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:(1) in:(A) a mental health facility operated by the Department of State Health Services; or(B) a facility licensed under Chapter 252, Health and Safety Code;(2) in or from a community center, a local mental health authority, or a local mental retardation authority; or(3) through a program providing services to that person by contract with a mental health facility operated by the Department of State Health Services, a community center, a local mental health authority, or a local mental retardation authority.(b) The department shall receive and shall investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:(1) in a state supported living center or the ICF-MR component of the Rio Grande State Center; or(2) through a program providing services to that person by contract with a state supported living center or the ICF-MR component of the Rio Grande State Center.(c) The department by rule shall define who is "an individual with a disability receiving services."(d) 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, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 57, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1281, Sec. 1, eff. Sept. 1, 1997. Renumbered from Sec. 48.081 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 32, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 30, eff. June 11, 2009.
Sec. 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, Sec. 33, eff. Sept. 1, 1999.
Sec. 48.254. FORWARDING OF CERTAIN REPORTS. In accordance with department rules, the department shall forward a copy of the initial intake report and a copy of the completed investigation report relating to alleged or suspected abuse, neglect, or exploitation to the appropriate facility, community center, mental health authority, mental retardation authority, or program providing mental health or mental retardation services under contract with the facility, community center, or authority.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 31, eff. June 11, 2009.
Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER. (a) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall develop joint rules to facilitate investigations in state mental health facilities and state supported living centers.(b) The department, the Department of Aging and Disability Services, and the Department of State Health Services by joint rules shall establish procedures for resolving disagreements between the department and the Department of Aging and Disability Services or the Department of State Health Services concerning the department's investigation findings.(c) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall develop joint rules to facilitate investigations in community centers, mental health authorities, and mental retardation authorities.(c-1) The executive commissioner shall adopt rules regarding investigations in a facility licensed under Chapter 252, Health and Safety Code, to ensure that those investigations are as consistent as practicable with other investigations conducted under this subchapter.(d) A confirmed investigation finding by the department may not be changed by a superintendent of a state mental health facility, by a director of a state supported living center, by a director of a community center, or by a mental health authority or mental retardation authority.(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, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 32, eff. June 11, 2009.
Sec. 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND INVESTIGATIONS. (a) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall jointly develop and implement a single system to track reports and investigations under this subchapter.(b) To facilitate implementation of the system, the department, the Department of Aging and Disability Services, and the Department of State Health Services shall use appropriate methods of measuring the number and outcome of reports and investigations under this subchapter.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 33, eff. June 11, 2009.
SUBCHAPTER G. INVESTIGATIONS IN CERTAIN FACILITIESSec. 48.301. INVESTIGATION OF REPORTS IN OTHER STATE FACILITIES. (a) If the department receives a report of suspected abuse, neglect, or exploitation of an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, in a facility operated, licensed, certified, or registered by a state agency, 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 that may receive reports under this section 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, Sec. 34, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 355, Sec. 7, eff. Sept. 1, 2001.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 34, eff. June 11, 2009.
Sec. 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, Sec. 34, eff. Sept. 1, 1999.
Sec. 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, Sec. 5.01(a), eff. Sept. 1, 1987. Renumbered from Sec. 48.022 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 35, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 14, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 36, eff. Sept. 1, 1999.
SUBCHAPTER H. INVESTIGATIONS OF PROVIDERS OF HOME AND COMMUNITY-BASED SERVICES CON
HUMAN RESOURCES CODETITLE 2. DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICESSUBTITLE D. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; CHILD WELFARE AND PROTECTIVE SERVICESCHAPTER 48. INVESTIGATIONS AND PROTECTIVE SERVICES FOR ELDERLY AND DISABLED PERSONSSUBCHAPTER A. GENERAL PROVISIONSSec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 2, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 274, ch. 51, Sec. 1, eff. Aug. 29, 1983; Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 264, Sec. 16, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 568, Sec. 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 1, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(15), 8.041, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 3, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 51, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, Sec. 2, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Renumbered from Sec. 48.085 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 3, eff. Sept. 1, 1999.
Sec. 48.004. RISK ASSESSMENT. The executive commissioner by rule shall develop and maintain risk assessment criteria for use by department personnel in determining whether an elderly or disabled person is in imminent risk of abuse, neglect, or exploitation or in a state of abuse, neglect, or exploitation and needs protective services. The criteria must:(1) provide for a comprehensive assessment of the person's:(A) environmental, physical, medical, mental health, and financial condition;(B) social interaction and support; and(C) need for legal intervention; and(2) specify the circumstances under which a caseworker must consult with a supervisor regarding a case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.06, eff. September 1, 2005.
Sec. 48.005. MAINTENANCE OF RECORDS. Notwithstanding Chapter 441, Government Code, or any other law, and subject to the availability of funds, the department shall maintain in an electronic format a summary of all records related to investigations of reports made under Section 48.051 that includes only critical information with respect to those investigations that will enable the department to research the history of a person's involvement in the investigated cases.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.07, eff. September 1, 2005.
Sec. 48.006. COMMUNITY SATISFACTION SURVEY. (a) Subject to the availability of funds, the department shall develop a community satisfaction survey that solicits information regarding the department's performance with respect to providing investigative and adult protective services. In each region, the department shall send the survey at least annually to:(1) stakeholders in the adult protective services system, including local law enforcement agencies and prosecutors' offices;(2) protective services agencies, including nonprofit agencies; and(3) courts with jurisdiction over probate matters.(b) The department shall send the results of each region's survey to:(1) the region for evaluation by regional and program administrators and implementation of changes necessary to address community concerns;(2) the presiding judge of the statutory probate courts in that region; and(3) courts with jurisdiction over probate matters in that region.(c) The department may not include any confidential information in the results of the survey provided under Subsection (b)(2) or (3) unless ordered by a court.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.07, eff. September 1, 2005.
Sec. 48.007. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The Health and Human Services Commission, the department, the Department of Aging and Disability Services, the office of independent ombudsman for state supported living centers, and the Health and Human Services Commission's office of inspector general shall enter into a memorandum of understanding regarding investigations of alleged abuse, neglect, or exploitation of residents or clients of state supported living centers or the ICF-MR component of the Rio Grande State Center that delineates the responsibilities of each agency under this chapter, Chapter 261, Family Code, and Chapter 555, Health and Safety Code, and amend the memorandum of understanding as necessary to reflect changes in those responsibilities. During the negotiation of the memorandum of understanding, the agencies shall jointly determine whether the forensic training received by relevant staff of the Department of Family and Protective Services is adequate. Specifically, the agencies shall assess and, if necessary, develop a plan to enhance the ability of department staff to identify and report incidences that constitute a potential criminal offense. The Health and Human Services Commission is the final arbiter of any dispute regarding the memorandum of understanding under this section.
Added by Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 25, eff. June 11, 2009.
SUBCHAPTER B. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION: IMMUNITIESSec. 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, including a disabled person receiving services as described by Section 48.252, shall report the information required by Subsection (d) immediately to the department.(b) If a person has cause to believe that an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, has been abused, neglected, or exploited in a facility operated, licensed, certified, or registered by a state agency, 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.(e) If a person who makes a report under this section chooses to give self-identifying information, the caseworker who investigates the report shall contact the person if necessary to obtain any additional information required to assist the person who is the subject of the report.
Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.02, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 247, Sec. 16, eff. June 14, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(22), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, Sec. 8.043, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 303, Sec. 6, 15(1), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 54, eff. Sept. 1, 1997. Renumbered from Sec. 48.036 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 5, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 205, Sec. 1, eff. May 21, 2001.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.08, eff. September 1, 2005.Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 26, eff. June 11, 2009.
Sec. 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, except that the offense is a state jail felony if it is shown on the trial of the offense that the disabled person was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the disabled person had suffered serious bodily injury as a result of the abuse, neglect, or exploitation.(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, Sec. 5.03, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(21), eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 7, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1278, Sec. 1, eff. Sept. 1, 1997. Renumbered from Sec. 48.0361 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 6, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 27, eff. June 11, 2009.
Sec. 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, Sec. 55, eff. Sept. 1, 1997. Renumbered from Sec. 48.0362 by Acts 1999, 76th Leg., ch. 907, Sec. 7, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 10, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 8, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 205, Sec. 2, eff. May 21, 2001.
SUBCHAPTER C. CONFIDENTIALITYSec. 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 executive commissioner shall adopt rules providing 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.(d-1) Subject to Subsection (e-1), the executive commissioner shall adopt rules providing for the release, on request, by the department or investigating state agency of otherwise confidential information relating to a person who is the subject of a report or investigation of abuse, neglect, or exploitation or to whom the department has provided protective services, to:(1) a court that has a matter pending before it that involves the person;(2) the attorney ad litem or any other legal representative, other than a guardian, appointed for the person; and(3) the person's legal guardian.(e) The executive commissioner may adopt rules relating to the release of information by the department or investigating state agency that is 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. The executive commissioner shall adopt rules, subject to Subsection (e-1), that provide for the release, on request, of otherwise confidential information in the deceased person's record to the personal representative appointed for the person's estate.(e-1) Information released by the department or an investigating state agency under Subsection (d-1) or to a personal representative under Subsection (e) may not include the identity of the person who made the report of abuse, neglect, or exploitation.(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.(g) The department may establish procedures to exchange with a community service provider or local governmental entity confidential information relating to a report made under Section 48.051(a) that is necessary for the department, provider, or entity to provide protective services, health care services, housing services, or social services to the person who is the subject of the report. An exchange of information under this subsection does not affect whether the information is subject to disclosure under Chapter 552, Government Code.(g-1) The executive commissioner by rule shall provide policies and procedures that are designed to guard against the unauthorized release or dissemination of confidential information that is exchanged under Subsection (g).
Added by Acts 1995, 74th Leg., ch. 303, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 58, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 907, Sec. 10, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.09, eff. September 1, 2005.
Sec. 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, Sec. 12, eff. Sept. 1, 1999.
Sec. 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, Sec. 13, eff. Sept. 1, 1999. Renumbered from Sec. 48.0381 by Acts 2001, 77th Leg., ch. 75, Sec. 1, eff. May 14, 2001.
SUBCHAPTER D. INVESTIGATIONS BY ALL AGENCIESSec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, Sec. 5.04, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, Sec. 8, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 56, eff. Sept. 1, 1997. Renumbered from Sec. 48.037 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 14, eff. Sept. 1, 1999.
Sec. 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, Sec. 15, eff. Sept. 1, 1999.
Sec. 48.1521. INVESTIGATION OF COMPLEX CASES. (a) The department shall develop and implement a system to ensure that, to the greatest extent possible, investigations conducted by the department that involve especially complex issues of abuse, neglect, or exploitation, such as issues associated with identity theft and other forms of financial exploitation, are:(1) assigned to personnel who have experience and training in those issues; and(2) monitored by a special task unit for complex cases.(b) Each county with a population of 250,000 or more shall appoint persons to serve as standing members of a special task unit to monitor cases that arise in the county and require monitoring as provided by Subsection (a). The standing members of each special task unit must include:(1) a provider of mental health services or aging services or a representative of a nonprofit entity serving persons with disabilities;(2) a representative of a law enforcement agency; and(3) a legal expert.(c) In addition to the standing members specified by Subsection (b), the special task unit:(1) must include, for purposes of monitoring a particular case, the caseworker on the case and the caseworker's supervisor; and(2) may include a financial forensics expert and any other person with expertise that would be useful in monitoring a particular case.(d) The department shall develop and make available to each county described by Subsection (b) a manual to assist the county in establishing and operating the special task unit required by this section. The manual must describe:(1) the purpose and potential benefits of the unit;(2) a description of the monitoring process the unit is expected to follow and potential problems the unit may encounter;(3) the composition and administration of the unit; and(4) the department's criteria for selecting cases to be monitored by the unit.(e) Before the special task unit makes a recommendation that a guardian be appointed for a person in a case being monitored by the unit, the unit shall thoroughly consider all less-restrictive alternatives for legal intervention in the case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.10(a), eff. September 1, 2005.
Sec. 48.1522. REPORTS OF CRIMINAL CONDUCT TO LAW ENFORCEMENT AGENCY. (a) Except as provided by Subsection (b), if during the course of the department's or another state agency's investigation of reported abuse, neglect, or exploitation a caseworker of the department or other state agency, as applicable, or the caseworker's supervisor has cause to believe that the elderly or disabled person has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker or supervisor shall:(1) immediately notify an appropriate law enforcement agency; and(2) provide the law enforcement agency with a copy of the investigation report of the department or other state agency, as applicable, in a timely manner.(b) If during the course of the department's investigation of reported abuse, neglect, or exploitation a caseworker of the department or the caseworker's supervisor has cause to believe that a disabled person who is a resident or client of a state supported living center or the ICF-MR component of the Rio Grande State Center has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker shall immediately notify the commission's office of inspector general and promptly provide the commission's office of inspector general with a copy of the department's investigation report.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.11, eff. September 1, 2005.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 28, eff. June 11, 2009.
Sec. 48.1523. MANAGEMENT REVIEW FOLLOWING CERTAIN INVESTIGATIONS. If the department receives and investigates a report made under Section 48.051, the subject of which is a person with respect to whom the department received and investigated two previous reports under that section and closed those investigations, an adult protective services supervisor shall:(1) classify the case as a recidivist case;(2) review the reports and investigation files concerning that person; and(3) assist the caseworker and supervisor investigating the third report in developing a long-term plan for resolving the issues involved in the case.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.12, eff. September 1, 2005.
Sec. 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, Sec. 15, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Aug. 30, 1993. Amended by Acts 1995, 74th Leg., ch. 303, Sec. 10, eff. Sept. 1, 1995. Renumbered from Sec. 48.0385 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 16, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 59, eff. Sept. 1, 1997. Renumbered from Sec. 48.103 by Acts 1999, 76th Leg., ch. 907, Sec. 17, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.057 by Acts 1999, 76th Leg., ch. 907, Sec. 18, eff. Sept. 1, 1999.
Sec. 48.159. INTERNAL REVIEW OF DEPARTMENT INVESTIGATION. The department shall establish procedures for conducting an internal review of completed investigations conducted by the department under this chapter to:(1) determine whether information obtained during the intake process was sufficient and accurate;(2) assess whether telephone calls were appropriately routed;(3) assess whether investigations were appropriately classified and prioritized;(4) evaluate the case reports for any special issues or requirements;(5) assess whether appropriate law enforcement agencies were notified of any suspected criminal conduct; and(6) identify other relevant information to enable the department to take any corrective action necessary to improve the process of conducting investigations under this chapter.
Added by Acts 2005, 79th Leg., Ch. 268, Sec. 2.13, eff. September 1, 2005.
SUBCHAPTER E. PROVISION OF SERVICES; EMERGENCY PROTECTIONSec. 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, Sec. 21, eff. Sept. 1, 1999.
Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY. (a) 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 provision;(6) whether the elderly or disabled person desires the services;(7) whether the person needs legal intervention to resolve the person's abuse, neglect, or exploitation and, if so, what type of intervention is needed; and(8) other pertinent data.(b) If the department or state agency, as appropriate, determines under Subsection (a)(1) that a person needs protective services, the department or agency shall, in determining how those services can be provided as required by Subsection (a)(3), determine whether the person is eligible for community-based long-term care services and whether those services are available. If the person is eligible for those services, but the services are not immediately available, the department or state agency shall ensure that the person is placed on an appropriate waiting list for the services and that the person's abuse, neglect, or exploitation is resolved before the department closes the case.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 21, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.14, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.059 by Acts 1999, 76th Leg., ch. 907, Sec. 22, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 12, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 23, eff. Sept. 1, 1999.
Sec. 48.205. PROVISION OF SERVICES. (a) Subject to the availability of funds, the department shall provide direct protective services or contract with protective services agencies for the provision of those services.(b) The department shall use existing resources and services of public and private agencies in providing protective services. If the department does not have existing resources to provide direct protective services to elderly or disabled persons, the department, subject to the availability of funds, shall contract with protective services agencies for the provision of those services, especially to elderly or disabled persons residing in rural or remote areas of this state or not previously served by the department.(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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Added by Acts 1981, 67th Leg., p. 2368, ch. 584, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 905, Sec. 5, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 303, Sec. 4, eff. Sept. 1, 1995. Renumbered from Sec. 48.021 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 24, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.15, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983. Renumbered from Sec. 48.058 by Acts 1999, 76th Leg., ch. 907, Sec. 25, eff. Sept. 1, 1999.
Sec. 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, Sec. 14, eff. Sept. 1, 1995. Renumbered from Sec. 48.102 by Acts 1999, 76th Leg., ch. 907, Sec. 11, eff. Sept. 1, 1999.
Sec. 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.(c-1) Notwithstanding Subsection (c)(4), in lieu of a medical report described by Subsection (c)(4), the petition may include an assessment of the elderly or disabled person's health status as described by Subsection (c-2) or psychological status as described by Subsection (c-3), or a medical opinion of the elderly or disabled person's health status as described by Subsection (c-4), if the department determines, after making a good faith effort, that a physician from whom the department may obtain the medical report is unavailable. The department shall ensure that the person who performs an assessment of the elderly or disabled person's health or psychological status has training and experience in performing the applicable assessment.(c-2) Except as provided by Subsection (c-4), an assessment of the elderly or disabled person's health status must be performed by a physician assistant or advanced practice nurse. The person performing the assessment shall sign a report stating:(1) that the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety;(2) whether the elderly or disabled person has provided the person's medical history to the physician assistant or advanced practice nurse, as applicable; and(3) that in the professional opinion of the physician assistant or advanced practice nurse, as applicable, the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-3) An assessment of the elderly or disabled person's psychological status must be performed by a licensed psychologist or master social worker who has training and expertise in issues related to abuse, neglect, and exploitation. The person performing the assessment shall sign a report stating:(1) that the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and(2) that in the professional opinion of the licensed psychologist or master social worker, as applicable, the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-4) A registered nurse may perform a nursing assessment of the elderly or disabled person's health status. If the registered nurse, based on the registered nurse's professional nursing judgment, determines that the elderly or disabled person is likely to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety, the registered nurse shall report that assessment to a physician. After the registered nurse reports the assessment, the physician shall sign a written opinion stating whether:(1) the elderly or disabled person is reported to be suffering from abuse, neglect, or exploitation, which may present a threat to the person's life or physical safety; and(2) the issuance of an emergency order authorizing protective services without the elderly or disabled person's consent is necessary under the circumstances.(c-5) The physician may use the registered nurse's assessment of the elderly or disabled person's health status as the basis of the physician's professional opinion under Subsection (c-4).(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.(d-1) If the court renders an order that is based on a petition including an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4), the court shall order that the elderly or disabled person be examined by a physician not later than 72 hours after the time the provision of protective services begins. After performing the examination, the physician shall sign and submit to the court a medical report stating the physician's opinion whether the elderly or disabled person is:(1) suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; and(2) physically or mentally incapable of consenting to services.(e) The emergency order expires at the end of 72 hours from the time the order is rendered unless:(1) the emergency order terminates as provided by Subsection (e-1);(2) 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; or(3) the court extends the order as provided by Subsection (e-2).(e-1) An emergency order that was rendered based on a petition that included an assessment under Subsection (c-2) or (c-3) or a medical opinion under Subsection (c-4) immediately terminates if the medical report issued under Subsection (d-1) states the physician's opinion that the elderly or disabled person:(1) is not suffering from abuse, neglect, or exploitation presenting a threat to life or physical safety; or(2) is physically or mentally capable of consenting to services.(e-2) The court may extend an emergency order issued under this section for a period of not more than 30 days. An extension 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, Sec. 4, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 569, Sec. 1, eff. June 18, 1987; Acts 1991, 72nd Leg., ch. 213, Sec. 2 to 4, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 303, Sec. 13, eff. Sept. 1, 1995. Renumbered from Sec. 48.061 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 26, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 75, Sec. 2, eff. May 14, 2001.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 2.16, eff. September 1, 2005.
Sec. 48.209. REFERRAL FOR GUARDIANSHIP SERVICES. (a) The department shall refer an individual to the Department of Aging and Disability Services for guardianship services under Subchapter E, Chapter 161, if the individual is:(1) a minor in the conservatorship of the department who:(A) is 16 years of age or older; and(B) the department has reason to believe will, because of a physical or mental condition, be substantially unable to provide for the individual's own food, clothing, or shelter, to care for the individual's own physical health, or to manage the individual's own financial affairs when the individual becomes an adult; or(2) an elderly or disabled person who:(A) has been found by the department to be in a state of abuse, neglect, or exploitation; and(B) the department has reason to believe is an incapacitated person as defined by Section 601(14)(B), Texas Probate Code.(b) Notwithstanding Subsection (a), if a less restrictive alternative to guardianship is appropriate and available for the individual, the department shall pursue that alternative instead of making a referral to the Department of Aging and Disability Services for guardianship services.(c) The department and the Department of Aging and Disability Services shall enter into a memorandum of understanding that sets forth in detail the roles and duties of each agency regarding the referral for guardianship services under Subsection (a) and the provision of guardianship services to individuals under Subchapter E, Chapter 161.(d) Nothing in this section shall prohibit the department from also making a referral of an individual to a court having probate jurisdiction in the county where the individual is domiciled or found, if the court has requested the department to notify the court of any individuals who may be appropriate for a court-initiated guardianship proceeding under Section 683, Texas Probate Code. In making a referral under this subsection and if requested by the court, the department shall, to the extent allowed by law, provide the court with all relevant information in the department's records relating to the individual. The court, as part of this process, may not require the department to:(1) perform the duties of a guardian ad litem or court investigator as prescribed by Section 683, Texas Probate Code; or(2) gather additional information not contained in the department's records.(e) The department may not be appointed to serve as temporary or permanent guardian for any individual.
Added by Acts 1995, 74th Leg., ch. 303, Sec. 4, eff. Sept. 1, 1995. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 8.042, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1039, Sec. 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1022, Sec. 52, 53, eff. Sept. 1, 1997. Renumbered from Sec. 48.0215 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 27, eff. Sept. 1, 1999.Amended by: Acts 2005, 79th Leg., Ch. 268, Sec. 3.02, eff. September 1, 2005.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 568, Sec. 3, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 303, Sec. 11, eff. Sept. 1, 1995. Renumbered from Sec. 48.040 by Acts 1999, 76th Leg., ch. 907, Sec. 28, eff. Sept. 1, 1999.
Sec. 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, Sec. 29, eff. Sept. 1, 1999.
SUBCHAPTER F. INVESTIGATIONS IN CERTAIN FACILITIES, COMMUNITY CENTERS, AND LOCAL MENTAL HEALTH AND MENTAL RETARDATION AUTHORITIESSec. 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, Sec. 31, eff. Sept. 1, 1999.
Sec. 48.252. INVESTIGATION OF REPORTS IN CERTAIN FACILITIES AND IN COMMUNITY CENTERS. (a) The department shall receive and investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:(1) in:(A) a mental health facility operated by the Department of State Health Services; or(B) a facility licensed under Chapter 252, Health and Safety Code;(2) in or from a community center, a local mental health authority, or a local mental retardation authority; or(3) through a program providing services to that person by contract with a mental health facility operated by the Department of State Health Services, a community center, a local mental health authority, or a local mental retardation authority.(b) The department shall receive and shall investigate reports of the abuse, neglect, or exploitation of an individual with a disability receiving services:(1) in a state supported living center or the ICF-MR component of the Rio Grande State Center; or(2) through a program providing services to that person by contract with a state supported living center or the ICF-MR component of the Rio Grande State Center.(c) The department by rule shall define who is "an individual with a disability receiving services."(d) 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, Sec. 14, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1022, Sec. 57, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1281, Sec. 1, eff. Sept. 1, 1997. Renumbered from Sec. 48.081 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 32, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 30, eff. June 11, 2009.
Sec. 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, Sec. 33, eff. Sept. 1, 1999.
Sec. 48.254. FORWARDING OF CERTAIN REPORTS. In accordance with department rules, the department shall forward a copy of the initial intake report and a copy of the completed investigation report relating to alleged or suspected abuse, neglect, or exploitation to the appropriate facility, community center, mental health authority, mental retardation authority, or program providing mental health or mental retardation services under contract with the facility, community center, or authority.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 31, eff. June 11, 2009.
Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER. (a) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall develop joint rules to facilitate investigations in state mental health facilities and state supported living centers.(b) The department, the Department of Aging and Disability Services, and the Department of State Health Services by joint rules shall establish procedures for resolving disagreements between the department and the Department of Aging and Disability Services or the Department of State Health Services concerning the department's investigation findings.(c) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall develop joint rules to facilitate investigations in community centers, mental health authorities, and mental retardation authorities.(c-1) The executive commissioner shall adopt rules regarding investigations in a facility licensed under Chapter 252, Health and Safety Code, to ensure that those investigations are as consistent as practicable with other investigations conducted under this subchapter.(d) A confirmed investigation finding by the department may not be changed by a superintendent of a state mental health facility, by a director of a state supported living center, by a director of a community center, or by a mental health authority or mental retardation authority.(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, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 32, eff. June 11, 2009.
Sec. 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND INVESTIGATIONS. (a) The department, the Department of Aging and Disability Services, and the Department of State Health Services shall jointly develop and implement a single system to track reports and investigations under this subchapter.(b) To facilitate implementation of the system, the department, the Department of Aging and Disability Services, and the Department of State Health Services shall use appropriate methods of measuring the number and outcome of reports and investigations under this subchapter.
Added by Acts 1999, 76th Leg., ch. 907, Sec. 33, eff. Sept. 1, 1999.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 33, eff. June 11, 2009.
SUBCHAPTER G. INVESTIGATIONS IN CERTAIN FACILITIESSec. 48.301. INVESTIGATION OF REPORTS IN OTHER STATE FACILITIES. (a) If the department receives a report of suspected abuse, neglect, or exploitation of an elderly or disabled person, other than a disabled person receiving services as described by Section 48.252, in a facility operated, licensed, certified, or registered by a state agency, 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 that may receive reports under this section 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, Sec. 34, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 355, Sec. 7, eff. Sept. 1, 2001.Amended by: Acts 2009, 81st Leg., R.S., Ch. 284, Sec. 34, eff. June 11, 2009.
Sec. 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, Sec. 34, eff. Sept. 1, 1999.
Sec. 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, Sec. 5.01(a), eff. Sept. 1, 1987. Renumbered from Sec. 48.022 and amended by Acts 1999, 76th Leg., ch. 907, Sec. 35, eff. Sept. 1, 1999.
Sec. 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, Sec. 1, eff. Sept. 1, 1981. Amended by Acts 1983, 68th Leg., p. 730, ch. 172, Sec. 1, eff. Sept. 1, 1983; Acts 1995, 74th Leg., ch. 303, Sec. 14, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 907, Sec. 36, eff. Sept. 1, 1999.
SUBCHAPTER H. INVESTIGATIONS OF PROVIDERS OF HOME AND COMMUNITY-BASED SERVICES CON
