By: Naishtat H.B. No. 1986
73R5152 KLL-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the employment of persons with criminal histories in
1-3 certain facilities serving the elderly or persons with
1-4 disabilities; providing a criminal penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
1-7 amended by adding Chapter 249 to read as follows:
1-8 CHAPTER 249. CRIMINAL HISTORY CHECKS OF EMPLOYEES AND
1-9 APPLICANTS FOR EMPLOYMENT IN CERTAIN FACILITIES SERVING THE
1-10 ELDERLY OR PERSONS WITH DISABILITIES
1-11 Sec. 249.001. DEFINITIONS. In this chapter:
1-12 (1) "Criminal history registry" means a list
1-13 maintained by the department of:
1-14 (A) the names of nurse aides and other persons
1-15 who are employed in positions or have applied for positions the
1-16 duties of which involve direct contact with a consumer in a
1-17 facility; and
1-18 (B) other information required by this chapter.
1-19 (2) "Department" means the Texas Department of Health.
1-20 (3) "Facility" means:
1-21 (A) a nursing home, custodial care home, or
1-22 other institution licensed by the department under Chapter 242;
1-23 (B) a personal care facility licensed by the
1-24 department under Chapter 247;
2-1 (C) a home health agency licensed by the
2-2 department under Chapter 142;
2-3 (D) an adult day care facility or adult day
2-4 health care facility licensed by the department under Chapter 103,
2-5 Human Resources Code;
2-6 (E) a facility for the mentally retarded
2-7 licensed by the department; or
2-8 (F) an unlicensed attendant care agency that
2-9 contracts with the Texas Department of Human Services.
2-10 Sec. 249.002. VERIFICATION OF EMPLOYABILITY; DISCHARGE. (a)
2-11 A facility may not employ a person in a position the duties of
2-12 which involve direct contact with a consumer in the facility until
2-13 the facility verifies that the applicant is listed in the criminal
2-14 history registry and verifies that the applicant is not designated
2-15 in the registry as "unemployable."
2-16 (b) A facility shall immediately discharge any employee in a
2-17 position the duties of which involve direct contact with a consumer
2-18 in the facility who is designated in the criminal history registry
2-19 as "unemployable" when the facility becomes aware of that
2-20 designation.
2-21 Sec. 249.003. CRIMINAL HISTORY RECORD OF EMPLOYEES. (a)
2-22 Once each year, the department shall submit the name, address,
2-23 birthdate, and any other information required by board rule of each
2-24 person listed in the criminal history registry, excluding persons
2-25 already designated in the registry as "unemployable," to the
2-26 Department of Public Safety for the person's criminal conviction
2-27 record.
3-1 (b) If the Department of Public Safety reports to the
3-2 department that a person has a criminal conviction of any kind, the
3-3 conviction shall be reviewed by the department to determine if the
3-4 conviction may bar the person from employment in a facility under
3-5 Section 249.005 or 249.006.
3-6 Sec. 249.004. NOTICE AND OPPORTUNITY FOR HEARING. (a) If
3-7 the department believes that a conviction may bar a person from
3-8 employment in a facility under Section 249.005 or 249.006, the
3-9 department shall notify the person by certified mail addressed to
3-10 the person's residence.
3-11 (b) The notification shall state that the finding of a
3-12 criminal conviction that may bar employment is a preliminary
3-13 finding and that the person has the right to contest the accuracy
3-14 of the report and to contest the characterization of the crime as
3-15 one that bars employment under Section 249.005 or 249.006. If a
3-16 crime is one that requires the consideration of mitigating factors
3-17 under Section 249.006, the notification shall also state that the
3-18 person has the right to submit evidence at a hearing concerning the
3-19 misdemeanor classification of the offense, the age of the person
3-20 when the offense was committed, the length of time since the
3-21 offense was committed, rehabilitation including employment history
3-22 in a facility, or mitigating circumstances when the offense was
3-23 committed.
3-24 (c) The notification shall state:
3-25 (1) that the person may submit a written request, not
3-26 later than the 20th day after the date the notification is
3-27 received, for a formal hearing;
4-1 (2) the name of the office, including its address, to
4-2 which the request must be submitted; and
4-3 (3) that the failure to request a hearing will cause
4-4 the commissioner to designate the person as "unemployable" in the
4-5 criminal history registry and to bar the person from employment in
4-6 any facility.
4-7 (d) On receipt of a timely request for hearing, a due
4-8 process hearing shall be provided in accordance with board rules.
4-9 (e) A designation of "unemployable" may not be entered in
4-10 the criminal history registry and a facility may not be notified of
4-11 that designation until the person affected has exhausted all
4-12 appeals available under board rules.
4-13 Sec. 249.005. CONVICTIONS BARRING EMPLOYMENT. (a) A person
4-14 convicted of an offense listed in this section may not be employed
4-15 in a position the duties of which involve direct contact with a
4-16 consumer in a facility:
4-17 (1) a criminal offense committed at a facility;
4-18 (2) an offense under Chapter 19, Penal Code;
4-19 (3) an offense under Chapter 20, Penal Code;
4-20 (4) an offense under Section 21.11, Penal Code;
4-21 (5) an offense under Section 25.031, Penal Code;
4-22 (6) an offense under Section 25.06, Penal Code;
4-23 (7) an offense under Section 25.11, Penal Code;
4-24 (8) an offense under Section 28.02, Penal Code;
4-25 (9) an offense under Section 29.02, Penal Code; or
4-26 (10) an offense under Section 29.03, Penal Code.
4-27 (b) When the proceedings under Section 249.004 are complete,
5-1 the department shall enter in the criminal history registry the
5-2 designation "unemployable" under the name of a person convicted of
5-3 an offense listed in this section and shall notify the facility
5-4 that employs the person of the designation.
5-5 Sec. 249.006. CONVICTIONS POTENTIALLY BARRING EMPLOYMENT.
5-6 (a) A person convicted of an offense listed in this section may
5-7 not be employed in a position the duties of which involve direct
5-8 contact with a consumer in a facility unless:
5-9 (1) the offense for which the person was convicted is
5-10 punishable as a Class C misdemeanor; or
5-11 (2) the department finds that the person is unlikely
5-12 to be a threat to the consumers or property of the consumers in a
5-13 facility.
5-14 (b) In making a finding under Subsection (a)(2), the
5-15 department shall consider the misdemeanor classification of the
5-16 offense, the age of the person at the time the offense was
5-17 committed, the length of time since the offense was committed,
5-18 evidence of rehabilitation including employment history in a
5-19 facility, or mitigating circumstances when the offense was
5-20 committed.
5-21 (c) A conviction for any of the following offenses may bar
5-22 employment under this section:
5-23 (1) an offense under Chapter 22, Penal Code;
5-24 (2) an offense under Chapter 30, Penal Code;
5-25 (3) an offense under Chapter 31, Penal Code;
5-26 (4) an offense under Chapter 46, Penal Code;
5-27 (5) a felony violation of a statute intended to
6-1 control the possession or distribution of a substance included in
6-2 Chapter 481;
6-3 (6) an offense under Chapter 32, Penal Code;
6-4 (7) an offense under Section 21.07, Penal Code;
6-5 (8) an offense under Section 21.08, Penal Code; or
6-6 (9) an offense under Chapter 43, Penal Code.
6-7 (d) Except as provided by Subsection (a), and when the
6-8 proceedings under Section 249.004 are complete, the department
6-9 shall enter in the criminal history registry the designation
6-10 "unemployable" under the name of a person convicted of an offense
6-11 listed in this section and shall notify the facility that employs
6-12 the person of the designation.
6-13 Sec. 249.007. REMOVAL OF DESIGNATION AS "UNEMPLOYABLE." (a)
6-14 A person who is designated as "unemployable" in the criminal
6-15 history registry as a result of a conviction for an offense listed
6-16 in Section 249.006(c) may apply to the department for a hearing to
6-17 consider removal of that designation and the bar from employment
6-18 after the fifth anniversary of the date of the department's finding
6-19 under Section 249.006(a)(2).
6-20 (b) The hearing shall be conducted under board rules for due
6-21 process hearings.
6-22 (c) In making a determination under this section, the
6-23 department shall consider the factors listed for consideration
6-24 under Section 249.006(b).
6-25 Sec. 249.008. RECORDS PRIVILEGED. (a) The criminal history
6-26 registry is for the exclusive use of the department and facilities.
6-27 (b) All criminal records and reports and the information
7-1 they contain that are received by the department are privileged
7-2 information and are for the exclusive use of the department.
7-3 (c) The criminal records and reports and the information
7-4 they contain may not be released or otherwise disclosed to any
7-5 person or agency except on court order or with the written consent
7-6 of the person being investigated.
7-7 Sec. 249.009. CRIMINAL PENALTY. (a) A person commits an
7-8 offense if the person releases or otherwise discloses any
7-9 information received under this chapter except as prescribed by
7-10 Section 249.008(b).
7-11 (b) An offense under this section is a felony of the second
7-12 degree.
7-13 Sec. 249.010. CIVIL LIABILITY. A facility or an officer or
7-14 employee of a facility is not civilly liable for failure to comply
7-15 with this subchapter if the facility makes a good faith effort to
7-16 comply.
7-17 SECTION 2. (a) Except as provided by Subsection (b) of this
7-18 section, the state agency exercising the powers and duties relating
7-19 to investigations of abuse and neglect in long-term care facilities
7-20 on September 1, 1993, shall exercise the powers and duties assigned
7-21 to the Texas Department of Health under Chapter 249, Health and
7-22 Safety Code, as added by this Act.
7-23 (b) If a facility listed in Section 249.001, Health and
7-24 Safety Code, as added by this Act, is not regulated by the state
7-25 agency exercising the powers and duties relating to investigations
7-26 of abuse and neglect in long-term care facilities on September 1,
7-27 1993, the agency that regulates that facility shall exercise the
8-1 powers and duties assigned to the Texas Department of Health under
8-2 Chapter 249, Health and Safety Code, as added by this Act, for that
8-3 facility.
8-4 SECTION 3. Not later than October 1, 1993, a facility listed
8-5 in Section 249.001, Health and Safety Code, as added by this Act,
8-6 shall submit to the appropriate state agency, as provided by
8-7 Section 2 of this Act, the names, addresses, birthdates, and any
8-8 other information required by rule of the appropriate agency for
8-9 each person employed at the facility in a position the duties of
8-10 which involve direct contact with a consumer in the facility.
8-11 SECTION 4. Chapter 106, Human Resources Code, is repealed.
8-12 SECTION 5. This Act takes effect September 1, 1993.
8-13 SECTION 6. The importance of this legislation and the
8-14 crowded condition of the calendars in both houses create an
8-15 emergency and an imperative public necessity that the
8-16 constitutional rule requiring bills to be read on three several
8-17 days in each house be suspended, and this rule is hereby suspended.