BILL ANALYSIS
H.B. 2704
By: Naishtat (Rosson)
Health and Human Services
05-17-95
Senate Committee Report (Unamended)
BACKGROUND
Chapter 250, 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, Human Resources Code.
PURPOSE
As proposed, H.B. 2704 sets forth provisions authorizing certain
regulatory and private agencies to obtain criminal history record
information from the Department of Protective and Regulatory
Services regarding employees and applicants for employment in
certain facilities serving the elderly or persons with
disabilities.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to a certain state agencies that serve the elderly or persons with
disabilities under SECTION 1 (Section 250.002(d), Health and Safety
Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 250, Health and Safety Code, as follows:
CHAPTER 250. NURSE AIDE REGISTRY AND CRIMINAL HISTORY CHECKS OF EMPLOYEES AND APPLICANTS FOR EMPLOYMENT IN CERTAIN FACILITIES
SERVING THE ELDERLY OR PERSONS WITH DISABILITIES
Sec. 250.001. DEFINITIONS. Defines "private agency" and
"regulatory agency." Redefines "nurse aide registry," "direct
contact with a consumer," and "facility." Deletes the
definition of "board" and "department."
Sec. 250.002. INFORMATION OBTAINED BY REGULATORY AGENCY OR
PRIVATE AGENCY. (a) Entitles a regulatory agency or private
agency on behalf of a facility to obtain from the Texas
Department of Public Safety (DPS) criminal history record
information maintained by DPS that relates to a person who is
an applicant for employment at a facility licensed, certified,
or under contract with the agency, or who is an employee of
that facility, and whose employment duties would or do involve
direct contact with a consumer in a facility.
(b) Authorizes a facility to pay a private agency to obtain
criminal history record information for an applicant or
employee described by Subsection (a) directly from DPS or
from the regulatory agency that obtains the information from
DPS regarding that facility.
(c) Requires the regulatory or private agency to forward the
criminal history record information received under this
section to the facility requesting the information.
(d) Authorizes a regulatory agency to adopt rules relating
to the processing of information requested or obtained under
this chapter.
Sec. 250.003. VERIFICATION OF EMPLOYABILITY; DISCHARGE.
Redesignates existing Section 250.002. (a) Prohibits a
facility from employing a person in a position involving
direct contact with a consumer in the facility if the facility
determines, as a result of a criminal history record check,
among other findings, that a conviction is a contraindication
to employment with the consumers the facility serves.
(b) Prohibits the facility from employing an applicant
covered by Subsection (a), except that in an emergency
requiring immediate employment, a facility may hire on a
temporary or interim basis a person not listed in the
registry pending the results of a criminal conviction check,
which must be requested, rather than submitted, within 72
hours of employment. Requires the request to be forwarded
to the facility's regulatory agency by the facility or a
private agency working with the facility, or to DPS by a
private agency working with the facility.
(c) Makes a conforming change.
Sec. 250.004. CRIMINAL HISTORY RECORD OF EMPLOYEES.
Redesignates existing Section 250.003. (a) Deletes reference
to the Texas Department of Health (TDH).
(b) Requires a conviction to be reviewed by the facility,
rather than TDH, if DPS reports that a person has a criminal
conviction of any kind, to determine, among other findings,
if the conviction may be a contraindication to employment.
Makes conforming changes.
Sec. 250.005. NOTICE AND OPPORTUNITY TO BE HEARD CONCERNING
ACCURACY OF INFORMATION. Redesignates existing Section
250.004. Requires a facility, if it believes that a
conviction may bar a person from certain employment or may be
a contraindication to employment, to notify the applicant or
employee.
(b) Requires DPS to give a person notified under Subsection
(a) the opportunity to be heard concerning the accuracy of
the criminal history record information, and to notify the
facility if inaccurate information is discovered. Deletes
existing Subsections (b)-(f) regarding notification and
review under this section.
Sec. 250.006. CONVICTIONS BARRING EMPLOYMENT. Redesignates
existing Section 250.005. Adds an offense under Section
25.08, rather than 25.11, Penal Code, to, and deletes an
offense under Section 25.06, Penal Code, from a list of
offenses which prohibit a person convicted of such an offense
from being employed in a position involving direct contact
with a consumer in a facility. Deletes existing Subsection
(b) regarding action upon completion of the proceedings under
Section 250.004. Deletes existing Section 250.006 regarding
convictions that potentially bar employment.
Sec. 250.007. RECORDS PRIVILEGED. (a) Provides that the
criminal history records are for the exclusive use of the
regulatory agency, the requesting facility, the private agency
on behalf of the requesting facility, and the applicant or
employee who is the subject of the records.
(b) Provides that all criminal records and reports that are
received by the regulatory or private agency for the purpose
of being forwarded to the requesting facility are privileged
information.
Sec. 250.008. CRIMINAL PENALTY. Makes no change.
Sec. 250.009. CIVIL LIABILITY. (a) Created from existing
text.
(b) Provides that a regulatory agency is not civilly liable
to a person for criminal history record information
forwarded to a requesting facility in accordance with this
chapter.
SECTION 2. Emergency clause.
Effective date: upon passage.