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18 of Article 4442c, Texas Civil Statutes, originally enacted in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.