BILL ANALYSIS C.S.H.B. 2704 By: Naishtat 04-12-95 Committee Report (Substituted) BACKGROUND Chapter 250 of the Health and Safety Code was enacted in 1993 as part of H.B. 1510, the clean-up bill for health and human services reorganization, to replace Chapter 106 of the Human Resources Code, which in turn represented a codification of Section 18 of Article 4442c, Texas Civil Statutes, originally enacted in 1985. The new Chapter 250 established the Nurse Aide Registry to be maintained by the Texas Department of Human Services as mandated by the federal nursing facility reforms passed in the Omnibus Budget Reconciliation Act of 1987. Chapter 250 also sets up mechanisms by which various health care facilities may obtain criminal history checks on current or prospective employees. PURPOSE As substituted, H.B. 2704 would streamline procedures for obtaining criminal histories on individuals who care for clients in certain health facilities, requiring background checks be obtained for employees and applicants who have direct contact with clients in nursing homes, personal care facilities, home health agencies, adult day care facilities, some attendant care agencies and facilities for persons with mental retardation. The legislation spells out certain convictions that remain a permanent bar to employment, but deletes administrative review panels to determine the employability of individuals who have been convicted, placing direct responsibility for employment upon the facilities themselves. Inaccuracies in information would still be resolved through hearings. Also, provision is made for facilities to hire employees on temporary basis pending the results of the criminal history check. Criminal history records would remain confidential under H.B. 2704, for the exclusive use of the regulatory agency and facility; and the regulatory agency would be protected from civil liability for forwarding information to a facility. RULEMAKING AUTHORITY H.B. 2704 grants rulemaking authority to the Dept. of Human Services in Sec. 250.002(d). SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 250, Health and Safety Code, by amending existing provisions, adding new Sec. 250.002, striking unnecessary provisions, and renumbering as necessary, to read as follows: CHAPTER 250. NURSE AIDE REGISTRY & CRIMINAL HISTORY CHECKS OF EMPLOYEES & APPLICANTS FOR EMPLOYMENT IN CERTAIN FACILITIES SERVING THE ELDERLY OR PERSONS WITH DISABILITIES Sec. 250.001. Updates references to the appropriate agencies regulating facilities whose employees must be checked, deleting references to TX Dept. of Health and inserting Dept. of Human Services. Also strikes verbiage in definition of "direct contact" to eliminate contact with family member or visitor of resident or client. Adds new provisions, including: (3)(I) Adds facilities providing mental health services and operated by or under contract with the TX Dept. of Mental Health & Mental Retardation. (4)-(5) Adds definition of "private agency" and "regulatory agency." Sec. 250.002. New section to read as follows: (a) Permits regulatory agencies or private agencies to obtain criminal history information from DPS relating to applicants for employment or employees of facilities set forth in Sec. 250.001, if that applicant or employee would be in direct contact with consumers. (b) Allows facilities to hire private agencies to obtain criminal history information if data obtained would be as reliable as when obtained by regulatory agency. (c) Requires regulatory agency or private agency to forward information to the facility. (d) Permits regulatory agency to adopt rules relating to processing information obtained herein and to set fees as needed. Sec. 250.003. (a) Delegates to facilities the authority to determine whether to employ a person in a position involving direct contact with consumers if the criminal history check shows that the individual has been convicted of an offense barring employment or that a conviction is a contraindication to employment with the consumers served by the facility. (b) Prohibits facilities from employing applicants under Subsection (a) except on a temporary basis pending the results of the criminal history check. Requests for criminal history checks must be forwarded to DHS or to DPS by the facility or a private agency working with the facility. (c) Requires facilities to discharge employees if the background check reveals a contraindication to employment. Sec. 250.004. Renumbers existing provision, striking references to the department, thus leaving it up to the facility to determine when to request criminal history data. Sec. 250.005. Renumbers heading of Section; amends existing provision (a), inserts new (b) and strikes certain provisions as follows: (a) Deletes references to the department and requires the facility to notify the individual if the information bars employment or contraindication to employment. (b) Requires DPS to give an individual notified under subsection (a) the opportunity to be heard regarding the accuracy of the information and notify the facility if inaccuracy is discovered. Also deletes existing provisions regarding the finding of criminal conviction and notice. (c)-(f) Strikes subsections regarding notice and administrative hearings. Also deletes provisions on designation as "unemployable" on the Nurse Aide Registry. Sec. 250.006. Renumbers existing provisions and in list of convictions barring employment, strikes offense under Sec. 25.06 of the Penal Code, and revises citation for Sec. 25.08. (b) Deletes subsection concerning the entry of "unemployable" in the Nurse Aide Registry. Also strikes old Sec. 250.006, listing those offenses which potentially barred employment but for which rehabilitation would be considered. Sec. 250.007 (a) Changes reference from "department" to "regulatory agency" and adds private agencies on behalf of requesting facilities, and applicant him- or herself to the list of who may use the criminal history records. (b) Deems criminal history records to be privileged information for the exclusive use of the regulatory agency or private agency for the purpose of forwarding to the requesting facility. (c) No change. Sec. 250.008. No change. Sec. 250.009. Designates existing provision as (a) and adds new subsection (b) to provide DHS with protection from civil liability for forwarding criminal history data to a facility. SECTION 2: Emergency clause, effective in 90 days. COMPARISON OF ORIGINAL TO SUBSTITUTE The committee substitute for H.B. 2704 made several minor changes to the original bill. In the definitions, the substitute removed family members and visitors from provision relating to direct contact. Also added MHMR institutions and contracted facilities and definition of private agencies. Allows private agencies to access criminal history information from DPS to forward to facilities. Allows DHS to adopt rules relating to processing information and set fees as necessary. Also removes list of offenses, clarifying that this list is not an exclusive listing of all offenses for which employment may be denied, using the phrase "contraindication to employment" to conditions which may bar employment. SUMMARY OF COMMITTEE ACTION In a public hearing on March 29, 1995, the Human Services Committee considered H.B. 2704 by Naishtat. Rep. Naishtat offered a committee substitute. The following witnesses testified for H.B. 2704: Marie Wisdom, Austin, representing herself and Advocates for Nursing Home Reform; Sara Speights, Texas Health Care Ass'n; David Latimer, Texas Ass'n of Homes & Services for the Aging; Heather Fenstermaker, Texas Ass'n of Home Care; and James Cooley, Austin. Chris Lopez, TX Dept. of Mental Health & Mental Retardation, testified as neutral on H.B. 2704. No one testified against H.B. 2704. Rep. Naishtat closed on the bill and withdrew the committee substitute; H.B. 2704 was left pending. On April 12, 1995, while convened in a formal meeting, the committee took up H.B. 2704 which had been pending. Rep. Maxey offered a committee substitute for H.B. 2704 and moved adoption. Hearing no objection, the substitute was adopted. Rep. Maxey moved passage of H.B. 2704 favorably as substituted; the motion prevailed by a record vote of 7 Ayes, 0 Nays, 0 PNV and 2 Absent.