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