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.