By Naishtat H.B. No. 2704
74R6576 KLL-D
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.
2-22 (4) "Regulatory agency" means a state agency referred
2-23 to in Subdivision (3).
2-24 Sec. 250.002. INFORMATION OBTAINED BY REGULATORY AGENCY.
2-25 (a) A regulatory agency is entitled to obtain from the Department
2-26 of Public Safety of the State of Texas criminal history record
2-27 information maintained by the Department of Public Safety that
3-1 relates to a person who is an applicant for employment at a
3-2 facility licensed, certified, or under contract with the agency, as
3-3 specified by Section 250.001(3), or who is an employee of that
3-4 facility, and whose employment duties would or do involve direct
3-5 contact with a consumer in a facility.
3-6 (b) A facility may pay a private agency to obtain criminal
3-7 history record information for an applicant or employee described
3-8 by Subsection (a) if the information obtained by the private agency
3-9 is as reliable as the information obtained by the regulatory
3-10 agency.
3-11 (c) The regulatory agency or private agency, as appropriate,
3-12 shall forward criminal history record information received under
3-13 this section to the facility requesting the information.
3-14 Sec. 250.003 <250.002>. Verification of Employability;
3-15 Discharge. (a) A facility may not employ a person in a position
3-16 the duties of which involve direct contact with a consumer in the
3-17 facility if the facility determines, as a result <results> of a
3-18 criminal history check, <reveal> that a person has been convicted
3-19 of an offense listed in this chapter that bars employment, and if
3-20 the applicant is a nurse aide, until the facility further verifies
3-21 that the applicant is listed in the nurse aide registry and
3-22 verifies that the applicant is not designated in the registry as
3-23 having a finding entered into the registry concerning abuse,
3-24 neglect, or mistreatment of a consumer of a facility, or
3-25 misappropriation of a consumer's property. A person licensed under
3-26 another law of this state is exempt from the requirements of this
3-27 chapter.
4-1 (b) The facility may not employ an applicant covered by
4-2 Subsection (a) <the applicant if it is notified by the department
4-3 that a conviction bars employment>, except that in an emergency
4-4 requiring immediate employment, a facility may hire on a temporary
4-5 or interim basis a person not listed in the registry pending the
4-6 results of a criminal conviction check, which must be submitted
4-7 within 72 hours of employment.
4-8 (c) A facility shall immediately discharge any employee in a
4-9 position the duties of which involve direct contact with a consumer
4-10 in the facility who is designated in the nurse aide registry as
4-11 having committed an act of abuse, neglect, or mistreatment of a
4-12 consumer of a facility, or misappropriation of a consumer's
4-13 property, or whose criminal history check reveals conviction of a
4-14 crime that bars employment as provided by this chapter.
4-15 Sec. 250.004 <250.003>. Criminal History Record of
4-16 Employees. (a) Identifying information, including mailing
4-17 addresses, of employees in direct contact with consumers in covered
4-18 facilities shall be submitted to the Department of Public Safety to
4-19 obtain the person's criminal conviction record when the person
4-20 applies for employment and at other times as the <department or
4-21 the> facility may determine appropriate.
4-22 (b) If the Department of Public Safety reports <to the
4-23 department> that a person has a criminal conviction of any kind,
4-24 the conviction shall be reviewed by the facility <department> to
4-25 determine if the conviction may bar the person from employment in a
4-26 facility under Section <250.005 or> 250.006.
4-27 Sec. 250.005 <250.004>. Notice and Opportunity TO BE HEARD
5-1 CONCERNING ACCURACY OF INFORMATION <FOR ADMINISTRATIVE REVIEW>.
5-2 (a) If a facility <the department> believes that a conviction may
5-3 bar a person from employment in a facility under Section <250.005
5-4 or> 250.006, the <department shall notify the> facility shall
5-5 notify the <and> applicant or employee.
5-6 (b) The Department of Public Safety of the State of Texas
5-7 shall give a person notified under Subsection (a) the opportunity
5-8 to be heard concerning the accuracy of the criminal history record
5-9 information and shall notify the facility if inaccurate information
5-10 is discovered. <The notification shall state that the finding of a
5-11 criminal conviction that may bar employment is a preliminary
5-12 finding and that the person has the right to object to the accuracy
5-13 of the report and to object to the finding that the crime is one
5-14 that bars employment under Section 250.005 or 250.006. If a crime
5-15 is one that requires the consideration of mitigating factors under
5-16 Section 250.006, the notification shall also state that the person
5-17 has the right to submit documentation concerning the misdemeanor
5-18 classification of the offense, the age of the person when the
5-19 offense was committed, rehabilitation including employment history
5-20 in a facility, or mitigating circumstances when the offense was
5-21 committed. The right to request removal of the bar to employment
5-22 does not extend to any finding by a court involving abuse, neglect,
5-23 or mistreatment of a consumer of a facility.>
5-24 <(c) The notification shall state:>
5-25 <(1) that the person may submit a written request, not
5-26 later than the 20th day after the date the notification is
5-27 received, for an administrative review of the criminal history
6-1 report;>
6-2 <(2) the name of the office, including its address, to
6-3 which the request must be submitted; and>
6-4 <(3) that the failure to request an administrative
6-5 review will cause the department to designate the person as
6-6 "unemployable" in the registry, if the person is an applicant for a
6-7 nurse aide position, and to bar the person from employment in any
6-8 facility.>
6-9 <(d) On receipt of a timely request, an administrative
6-10 review shall be provided in accordance with board rules. The
6-11 review is not subject to the Administrative Procedure and Texas
6-12 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes). The
6-13 review shall be conducted by an administrative review panel
6-14 consisting of five members and at least two alternates appointed by
6-15 the board. The panel shall be composed of representatives of the
6-16 facilities covered by this chapter, a representative of employees
6-17 of those facilities, and representatives of consumers. The review
6-18 panel shall consider each application submitted in writing by an
6-19 applicant to determine if mitigating circumstances existed at the
6-20 time the crime was committed or whether the applicant has been
6-21 substantially rehabilitated since that time. The panel's decision
6-22 shall be made solely from the documentation and other information
6-23 submitted by the applicant. The department may not be required to
6-24 make an independent investigation of the applicant's allegations.
6-25 If the panel finds the documentation submitted by the applicant is
6-26 insufficient to remove the bar to employment, the panel shall
6-27 provide the applicant an opportunity to appear personally before
7-1 the panel and offer further information.>
7-2 <(e) A designation of "unemployable" may not be entered in
7-3 the registry or a facility may not be notified of unemployability
7-4 until the person affected has exhausted all appeals available under
7-5 board rules.>
7-6 <(f) A nurse aide for whom there is a finding of abuse,
7-7 neglect, or mistreatment of a consumer of a facility, or
7-8 misappropriation of a consumer's property, and who is listed in the
7-9 nurse aide registry as "unemployable" as a result of those
7-10 findings, shall be offered the opportunity of a hearing under board
7-11 rules. The hearing is not subject to the Administrative Procedure
7-12 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
7-13 Statutes). The hearing may be conducted and decided by a hearing
7-14 officer designated by the department.>
7-15 Sec. 250.006 <250.005>. Convictions Barring Employment.
7-16 <(a)> A person convicted of an offense listed in this section may
7-17 not be employed in a position the duties of which involve direct
7-18 contact with a consumer in a facility:
7-19 (1) an offense under Chapter 19, Penal Code (criminal
7-20 homicide);
7-21 (2) an offense under Chapter 20, Penal Code
7-22 (kidnapping and false imprisonment);
7-23 (3) an offense under Section 21.11, Penal Code
7-24 (indecency with a child);
7-25 (4) an offense under Section 25.031, Penal Code
7-26 (agreement to abduct from custody);
7-27 (5) <an offense under Section 25.06, Penal Code
8-1 (solicitation of a child);>
8-2 <(6)> an offense under Section 25.08 <25.11>, Penal
8-3 Code (sale or purchase of a child);
8-4 (6) <(7)> an offense under Section 28.02, Penal Code
8-5 (arson);
8-6 (7) <(8)> an offense under Section 29.02, Penal Code
8-7 (robbery); or
8-8 (8) <(9)> an offense under Section 29.03, Penal Code
8-9 (aggravated robbery).
8-10 <(b) When the proceedings under Section 250.004 are
8-11 complete, the department shall enter in the nurse aide registry, if
8-12 the person is an applicant for a nurse aide position, the
8-13 designation "unemployable" under the name of a person convicted of
8-14 an offense listed in this section and shall notify the facility
8-15 that employs the person of the designation.>
8-16 <Sec. 250.006. ><Convictions Potentially Barring Employment><.
8-17 (a) A person convicted of an offense listed in this section may
8-18 not be employed in a position the duties of which involve direct
8-19 contact with a consumer in a facility unless:>
8-20 <(1) the offense for which the person was convicted is
8-21 punishable as a Class C misdemeanor; or>
8-22 <(2) the department finds through its administrative
8-23 review process that the person is unlikely to be a threat to the
8-24 consumers or property of the consumers in a facility.>
8-25 <(b) In making a finding under Subsection (a)(2), the
8-26 department shall consider the misdemeanor classification of the
8-27 offense, the age of the person at the time the offense was
9-1 committed, the length of time since the offense was committed,
9-2 evidence of rehabilitation including employment history in a
9-3 facility, or mitigating circumstances when the offense was
9-4 committed.>
9-5 <(c) A conviction for any of the following offenses may bar
9-6 employment under this section:>
9-7 <(1) an offense under Chapter 22, Penal Code
9-8 (assaultive offenses);>
9-9 <(2) an offense under Chapter 30, Penal Code (burglary
9-10 and criminal trespass);>
9-11 <(3) an offense under Chapter 31, Penal Code (theft);>
9-12 <(4) an offense under Chapter 46, Penal Code
9-13 (weapons);>
9-14 <(5) a felony violation of a statute intended to
9-15 control the possession or distribution of a substance included in
9-16 Chapter 481, Government Code (Texas Controlled Substances Act);>
9-17 <(6) an offense under Chapter 32, Penal Code (fraud);>
9-18 <(7) an offense under Section 21.07, Penal Code
9-19 (public lewdness);>
9-20 <(8) an offense under Section 21.08, Penal Code
9-21 (indecent exposure); or>
9-22 <(9) an offense under Chapter 43, Penal Code (public
9-23 indecency).>
9-24 <(d) Except as provided by Subsection (a), and when the
9-25 proceedings under Section 250.004 are completed, the department
9-26 shall enter in the nurse aide registry, if the person is an
9-27 applicant for a nurse aide position, the designation "unemployable"
10-1 under the name of a person found to have been convicted of an
10-2 offense listed in this section and shall notify the facility that
10-3 employs the person of the designation.>
10-4 <(e) If the department finds that a person is unlikely to be
10-5 a threat as provided by Subsection (a)(2), the department shall
10-6 note in the nurse aide registry that the person's conviction has
10-7 been reviewed and excepted from the bar to employment.>
10-8 Sec. 250.007. Records Privileged. (a) The criminal history
10-9 records are for the exclusive use of the regulatory agency
10-10 <department> and the requesting facility.
10-11 (b) All criminal records and reports and the information
10-12 they contain that are received by the regulatory agency for the
10-13 purpose of being forwarded to the requesting facility <department>
10-14 are privileged information and are for the exclusive use of the
10-15 regulatory agency and the requesting facility <department>.
10-16 (c) The criminal records and reports and the information
10-17 they contain may not be released or otherwise disclosed to any
10-18 person or agency except on court order or with the written consent
10-19 of the person being investigated.
10-20 Sec. 250.008. Criminal Penalty. (a) A person commits an
10-21 offense if the person releases or otherwise discloses any
10-22 information received under this chapter except as prescribed by
10-23 Section 250.007(b) or (c).
10-24 (b) An offense under this section is a Class A misdemeanor.
10-25 Sec. 250.009. CIVIL LIABILITY. (a) A facility or an
10-26 officer or employee of a facility is not civilly liable for failure
10-27 to comply with this chapter if the facility makes a good faith
11-1 effort to comply.
11-2 (b) A regulatory agency is not civilly liable to a person
11-3 for criminal history record information forwarded to a requesting
11-4 facility in accordance with this chapter.
11-5 SECTION 2. The importance of this legislation and the
11-6 crowded condition of the calendars in both houses create an
11-7 emergency and an imperative public necessity that the
11-8 constitutional rule requiring bills to be read on three several
11-9 days in each house be suspended, and this rule is hereby suspended,
11-10 and that this Act take effect and be in force from and after its
11-11 passage, and it is so enacted.