74R9674 KLL-D
By Naishtat H.B. No. 2704
Substitute the following for H.B. No. 2704:
By Maxey C.S.H.B. No. 2704
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to criminal history checks of employees and applicants for
1-3 employment in certain facilities serving the elderly or persons
1-4 with disabilities.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 250, Health and Safety Code, is amended
1-7 to read as follows:
1-8 CHAPTER 250. NURSE AIDE REGISTRY AND CRIMINAL HISTORY
1-9 CHECKS OF EMPLOYEES AND APPLICANTS FOR EMPLOYMENT IN
1-10 CERTAIN FACILITIES SERVING THE ELDERLY OR PERSONS
1-11 WITH DISABILITIES
1-12 Sec. 250.001. Definitions. In this chapter:
1-13 (1) "Nurse aide registry" means a list maintained by
1-14 the Texas Department of Human Services <department> of nurse aides
1-15 under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.
1-16 100-203).
1-17 (2) <"Board" means the Texas Board of Health.>
1-18 <(3) "Department" means the Texas Department of
1-19 Health.>
1-20 <(4)> "Direct contact with a consumer" means any
1-21 contact with a resident or client <or a family member or visitor of
1-22 a resident or client> in a facility covered by this chapter.
1-23 (3) <(5)> "Facility" means:
1-24 (A) a nursing home, custodial care home, or
2-1 other institution licensed by the Texas Department of Human
2-2 Services <department> under Chapter 242;
2-3 (B) a personal care facility licensed by the
2-4 Texas Department of Human Services <department> under Chapter 247;
2-5 (C) a home health agency licensed by the Texas
2-6 Department of Health <department> under Chapter 142;
2-7 (D) an adult day care facility or adult day
2-8 health care facility licensed by the Texas Department of Human
2-9 Services <department> under Chapter 103, Human Resources Code;
2-10 (E) a facility for persons with mental
2-11 retardation licensed or certified by the Texas Department of Human
2-12 Services <department>;
2-13 (F) an unlicensed attendant care agency that
2-14 contracts with the Texas Department of Human Services;
2-15 (G) an intermediate care facility for persons
2-16 with mental retardation that is certified by the Texas Department
2-17 of Human Services to participate in the Medicaid program under
2-18 Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
2-19 seq.); <or>
2-20 (H) an adult foster care provider that contracts
2-21 with the Texas Department of Human Services; or
2-22 (I) a facility that provides mental health
2-23 services and that is operated by or contracts with the Texas
2-24 Department of Mental Health and Mental Retardation.
2-25 (4) "Private agency" means a person engaged in the
2-26 business of obtaining criminal history checks on behalf of a
2-27 facility.
3-1 (5) "Regulatory agency" means a state agency referred
3-2 to in Subdivision (3).
3-3 Sec. 250.002. INFORMATION OBTAINED BY REGULATORY AGENCY OR
3-4 PRIVATE AGENCY. (a) A regulatory agency or a private agency on
3-5 behalf of a facility is entitled to obtain from the Department of
3-6 Public Safety of the State of Texas criminal history record
3-7 information maintained by the Department of Public Safety that
3-8 relates to a person who is an applicant for employment at a
3-9 facility licensed, certified, or under contract with the agency, as
3-10 specified by Section 250.001(3), or who is an employee of that
3-11 facility, and whose employment duties would or do involve direct
3-12 contact with a consumer in a facility.
3-13 (b) A facility may pay a private agency to obtain criminal
3-14 history record information for an applicant or employee described
3-15 by Subsection (a) directly from the Department of Public Safety of
3-16 the State of Texas or from the regulatory agency that obtains the
3-17 information from the Department of Public Safety of the State of
3-18 Texas regarding that facility.
3-19 (c) The regulatory agency or private agency, as appropriate,
3-20 shall forward criminal history record information received under
3-21 this section to the facility requesting the information.
3-22 (d) A regulatory agency may adopt rules relating to the
3-23 processing of information requested or obtained under this chapter.
3-24 Sec. 250.003 <250.002>. Verification of Employability;
3-25 Discharge. (a) A facility may not employ a person in a position
3-26 the duties of which involve direct contact with a consumer in the
3-27 facility if the facility determines, as a result <results> of a
4-1 criminal history check, <reveal> that a person has been convicted
4-2 of an offense listed in this chapter that bars employment or that a
4-3 conviction is a contraindication to employment with the consumers
4-4 the facility serves, and if the applicant is a nurse aide, until
4-5 the facility further verifies that the applicant is listed in the
4-6 nurse aide registry and verifies that the applicant is not
4-7 designated in the registry as having a finding entered into the
4-8 registry concerning abuse, neglect, or mistreatment of a consumer
4-9 of a facility, or misappropriation of a consumer's property. A
4-10 person licensed under another law of this state is exempt from the
4-11 requirements of this chapter.
4-12 (b) The facility may not employ an applicant covered by
4-13 Subsection (a) <the applicant if it is notified by the department
4-14 that a conviction bars employment>, except that in an emergency
4-15 requiring immediate employment, a facility may hire on a temporary
4-16 or interim basis a person not listed in the registry pending the
4-17 results of a criminal conviction check, which must be requested
4-18 <submitted> within 72 hours of employment. The request shall be
4-19 mailed, sent by telephonic facsimile machine, sent by electronic
4-20 means, or otherwise forwarded to the facility's regulatory agency
4-21 by the facility or a private agency working with the facility, or
4-22 to the Department of Public Safety of the State of Texas by a
4-23 private agency working with the facility.
4-24 (c) A facility shall immediately discharge any employee in a
4-25 position the duties of which involve direct contact with a consumer
4-26 in the facility who is designated in the nurse aide registry as
4-27 having committed an act of abuse, neglect, or mistreatment of a
5-1 consumer of a facility, or misappropriation of a consumer's
5-2 property, or whose criminal history check reveals conviction of a
5-3 crime that bars employment or that the facility determines is a
5-4 contraindication to employment as provided by this chapter.
5-5 Sec. 250.004 <250.003>. Criminal History Record of
5-6 Employees. (a) Identifying information, including mailing
5-7 addresses, of employees in direct contact with consumers in covered
5-8 facilities shall be submitted to the Department of Public Safety to
5-9 obtain the person's criminal conviction record when the person
5-10 applies for employment and at other times as the <department or
5-11 the> facility may determine appropriate.
5-12 (b) If the Department of Public Safety reports <to the
5-13 department> that a person has a criminal conviction of any kind,
5-14 the conviction shall be reviewed by the facility <department> to
5-15 determine if the conviction may bar the person from employment in a
5-16 facility under Section <250.005 or> 250.006 or if the conviction
5-17 may be a contraindication to employment.
5-18 Sec. 250.005 <250.004>. Notice and Opportunity TO BE HEARD
5-19 CONCERNING ACCURACY OF INFORMATION <FOR ADMINISTRATIVE REVIEW>.
5-20 (a) If a facility <the department> believes that a conviction may
5-21 bar a person from employment in a facility under Section <250.005
5-22 or> 250.006 or may be a contraindication to employment, the
5-23 <department shall notify the> facility shall notify the <and>
5-24 applicant or employee.
5-25 (b) The Department of Public Safety of the State of Texas
5-26 shall give a person notified under Subsection (a) the opportunity
5-27 to be heard concerning the accuracy of the criminal history record
6-1 information and shall notify the facility if inaccurate information
6-2 is discovered. <The notification shall state that the finding of a
6-3 criminal conviction that may bar employment is a preliminary
6-4 finding and that the person has the right to object to the accuracy
6-5 of the report and to object to the finding that the crime is one
6-6 that bars employment under Section 250.005 or 250.006. If a crime
6-7 is one that requires the consideration of mitigating factors under
6-8 Section 250.006, the notification shall also state that the person
6-9 has the right to submit documentation concerning the misdemeanor
6-10 classification of the offense, the age of the person when the
6-11 offense was committed, rehabilitation including employment history
6-12 in a facility, or mitigating circumstances when the offense was
6-13 committed. The right to request removal of the bar to employment
6-14 does not extend to any finding by a court involving abuse, neglect,
6-15 or mistreatment of a consumer of a facility.>
6-16 <(c) The notification shall state:>
6-17 <(1) that the person may submit a written request, not
6-18 later than the 20th day after the date the notification is
6-19 received, for an administrative review of the criminal history
6-20 report;>
6-21 <(2) the name of the office, including its address, to
6-22 which the request must be submitted; and>
6-23 <(3) that the failure to request an administrative
6-24 review will cause the department to designate the person as
6-25 "unemployable" in the registry, if the person is an applicant for a
6-26 nurse aide position, and to bar the person from employment in any
6-27 facility.>
7-1 <(d) On receipt of a timely request, an administrative
7-2 review shall be provided in accordance with board rules. The
7-3 review is not subject to the Administrative Procedure and Texas
7-4 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes). The
7-5 review shall be conducted by an administrative review panel
7-6 consisting of five members and at least two alternates appointed by
7-7 the board. The panel shall be composed of representatives of the
7-8 facilities covered by this chapter, a representative of employees
7-9 of those facilities, and representatives of consumers. The review
7-10 panel shall consider each application submitted in writing by an
7-11 applicant to determine if mitigating circumstances existed at the
7-12 time the crime was committed or whether the applicant has been
7-13 substantially rehabilitated since that time. The panel's decision
7-14 shall be made solely from the documentation and other information
7-15 submitted by the applicant. The department may not be required to
7-16 make an independent investigation of the applicant's allegations.
7-17 If the panel finds the documentation submitted by the applicant is
7-18 insufficient to remove the bar to employment, the panel shall
7-19 provide the applicant an opportunity to appear personally before
7-20 the panel and offer further information.>
7-21 <(e) A designation of "unemployable" may not be entered in
7-22 the registry or a facility may not be notified of unemployability
7-23 until the person affected has exhausted all appeals available under
7-24 board rules.>
7-25 <(f) A nurse aide for whom there is a finding of abuse,
7-26 neglect, or mistreatment of a consumer of a facility, or
7-27 misappropriation of a consumer's property, and who is listed in the
8-1 nurse aide registry as "unemployable" as a result of those
8-2 findings, shall be offered the opportunity of a hearing under board
8-3 rules. The hearing is not subject to the Administrative Procedure
8-4 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
8-5 Statutes). The hearing may be conducted and decided by a hearing
8-6 officer designated by the department.>
8-7 Sec. 250.006 <250.005>. Convictions Barring Employment.
8-8 <(a)> A person convicted of an offense listed in this section may
8-9 not be employed in a position the duties of which involve direct
8-10 contact with a consumer in a facility:
8-11 (1) an offense under Chapter 19, Penal Code (criminal
8-12 homicide);
8-13 (2) an offense under Chapter 20, Penal Code
8-14 (kidnapping and false imprisonment);
8-15 (3) an offense under Section 21.11, Penal Code
8-16 (indecency with a child);
8-17 (4) an offense under Section 25.031, Penal Code
8-18 (agreement to abduct from custody);
8-19 (5) <an offense under Section 25.06, Penal Code
8-20 (solicitation of a child);>
8-21 <(6)> an offense under Section 25.08 <25.11>, Penal
8-22 Code (sale or purchase of a child);
8-23 (6) <(7)> an offense under Section 28.02, Penal Code
8-24 (arson);
8-25 (7) <(8)> an offense under Section 29.02, Penal Code
8-26 (robbery); or
8-27 (8) <(9)> an offense under Section 29.03, Penal Code
9-1 (aggravated robbery).
9-2 <(b) When the proceedings under Section 250.004 are
9-3 complete, the department shall enter in the nurse aide registry, if
9-4 the person is an applicant for a nurse aide position, the
9-5 designation "unemployable" under the name of a person convicted of
9-6 an offense listed in this section and shall notify the facility
9-7 that employs the person of the designation.>
9-8 <Sec. 250.006. ><Convictions Potentially Barring Employment><.
9-9 (a) A person convicted of an offense listed in this section may
9-10 not be employed in a position the duties of which involve direct
9-11 contact with a consumer in a facility unless:>
9-12 <(1) the offense for which the person was convicted is
9-13 punishable as a Class C misdemeanor; or>
9-14 <(2) the department finds through its administrative
9-15 review process that the person is unlikely to be a threat to the
9-16 consumers or property of the consumers in a facility.>
9-17 <(b) In making a finding under Subsection (a)(2), the
9-18 department shall consider the misdemeanor classification of the
9-19 offense, the age of the person at the time the offense was
9-20 committed, the length of time since the offense was committed,
9-21 evidence of rehabilitation including employment history in a
9-22 facility, or mitigating circumstances when the offense was
9-23 committed.>
9-24 <(c) A conviction for any of the following offenses may bar
9-25 employment under this section:>
9-26 <(1) an offense under Chapter 22, Penal Code
9-27 (assaultive offenses);>
10-1 <(2) an offense under Chapter 30, Penal Code (burglary
10-2 and criminal trespass);>
10-3 <(3) an offense under Chapter 31, Penal Code (theft);>
10-4 <(4) an offense under Chapter 46, Penal Code
10-5 (weapons);>
10-6 <(5) a felony violation of a statute intended to
10-7 control the possession or distribution of a substance included in
10-8 Chapter 481, Government Code (Texas Controlled Substances Act);>
10-9 <(6) an offense under Chapter 32, Penal Code (fraud);>
10-10 <(7) an offense under Section 21.07, Penal Code
10-11 (public lewdness);>
10-12 <(8) an offense under Section 21.08, Penal Code
10-13 (indecent exposure); or>
10-14 <(9) an offense under Chapter 43, Penal Code (public
10-15 indecency).>
10-16 <(d) Except as provided by Subsection (a), and when the
10-17 proceedings under Section 250.004 are completed, the department
10-18 shall enter in the nurse aide registry, if the person is an
10-19 applicant for a nurse aide position, the designation "unemployable"
10-20 under the name of a person found to have been convicted of an
10-21 offense listed in this section and shall notify the facility that
10-22 employs the person of the designation.>
10-23 <(e) If the department finds that a person is unlikely to be
10-24 a threat as provided by Subsection (a)(2), the department shall
10-25 note in the nurse aide registry that the person's conviction has
10-26 been reviewed and excepted from the bar to employment.>
10-27 Sec. 250.007. Records Privileged. (a) The criminal history
11-1 records are for the exclusive use of the regulatory agency,
11-2 <department and> the requesting facility, the private agency on
11-3 behalf of the requesting facility, and the applicant or employee
11-4 who is the subject of the records.
11-5 (b) All criminal records and reports and the information
11-6 they contain that are received by the regulatory agency or private
11-7 agency for the purpose of being forwarded to the requesting
11-8 facility <department> are privileged information <and are for the
11-9 exclusive use of the department>.
11-10 (c) The criminal records and reports and the information
11-11 they contain may not be released or otherwise disclosed to any
11-12 person or agency except on court order or with the written consent
11-13 of the person being investigated.
11-14 Sec. 250.008. Criminal Penalty. (a) A person commits an
11-15 offense if the person releases or otherwise discloses any
11-16 information received under this chapter except as prescribed by
11-17 Section 250.007(b) or (c).
11-18 (b) An offense under this section is a Class A misdemeanor.
11-19 Sec. 250.009. CIVIL LIABILITY. (a) A facility or an
11-20 officer or employee of a facility is not civilly liable for failure
11-21 to comply with this chapter if the facility makes a good faith
11-22 effort to comply.
11-23 (b) A regulatory agency is not civilly liable to a person
11-24 for criminal history record information forwarded to a requesting
11-25 facility in accordance with this chapter.
11-26 SECTION 2. The importance of this legislation and the
11-27 crowded condition of the calendars in both houses create an
12-1 emergency and an imperative public necessity that the
12-2 constitutional rule requiring bills to be read on three several
12-3 days in each house be suspended, and this rule is hereby suspended,
12-4 and that this Act take effect and be in force from and after its
12-5 passage, and it is so enacted.