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.