1-1  By:  Naishtat, et al. (Senate Sponsor - Rosson)       H.B. No. 2704
    1-2        (In the Senate - Received from the House May 12, 1995;
    1-3  May 16, 1995, read first time and referred to Committee on Health
    1-4  and Human Services; May 17, 1995, reported favorably by the
    1-5  following vote:  Yeas 9, Nays 0; May 17, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to criminal history checks of employees and applicants for
    1-9  employment in certain facilities serving the elderly or persons
   1-10  with disabilities.
   1-11        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-12        SECTION 1.  Chapter 250, Health and Safety Code, is amended
   1-13  to read as follows:
   1-14        CHAPTER 250.  NURSE AIDE REGISTRY AND CRIMINAL HISTORY
   1-15         CHECKS OF EMPLOYEES AND APPLICANTS FOR EMPLOYMENT IN
   1-16           CERTAIN FACILITIES SERVING THE ELDERLY OR PERSONS
   1-17                           WITH DISABILITIES
   1-18        Sec. 250.001.  Definitions.  In this chapter:
   1-19              (1)  "Nurse aide registry" means a list maintained by
   1-20  the Texas Department of Human Services <department> of nurse aides
   1-21  under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.
   1-22  100-203).
   1-23              (2)  <"Board" means the Texas Board of Health.>
   1-24              <(3)  "Department" means the Texas Department of
   1-25  Health.>
   1-26              <(4)>  "Direct contact with a consumer" means any
   1-27  contact with a resident or client <or a family member or visitor of
   1-28  a resident or client> in a facility covered by this chapter.
   1-29              (3) <(5)>  "Facility" means:
   1-30                    (A)  a nursing home, custodial care home, or
   1-31  other institution licensed by the Texas Department of Human
   1-32  Services <department> under Chapter 242;
   1-33                    (B)  a personal care facility licensed by the
   1-34  Texas Department of Human Services <department> under Chapter 247;
   1-35                    (C)  a home health agency licensed by the Texas
   1-36  Department of Health <department> under Chapter 142;
   1-37                    (D)  an adult day care facility or adult day
   1-38  health care facility licensed by the Texas Department of Human
   1-39  Services <department> under Chapter 103, Human Resources Code;
   1-40                    (E)  a facility for persons with mental
   1-41  retardation licensed or certified by the Texas Department of Human
   1-42  Services <department>;
   1-43                    (F)  an unlicensed attendant care agency that
   1-44  contracts with the Texas Department of Human Services;
   1-45                    (G)  an intermediate care facility for persons
   1-46  with mental retardation that is certified by the Texas Department
   1-47  of Human Services to participate in the Medicaid program under
   1-48  Title XIX of the Social Security Act (42 U.S.C. Section 1396 et
   1-49  seq.); <or>
   1-50                    (H)  an adult foster care provider that contracts
   1-51  with the Texas Department of Human Services; or
   1-52                    (I)  a facility that provides mental health
   1-53  services and that is operated by or contracts with the Texas
   1-54  Department of Mental Health and Mental Retardation.
   1-55              (4)  "Private agency" means a person engaged in the
   1-56  business of obtaining criminal history checks on behalf of a
   1-57  facility.
   1-58              (5)  "Regulatory agency" means a state agency referred
   1-59  to in Subdivision (3).
   1-60        Sec. 250.002.  INFORMATION OBTAINED BY REGULATORY AGENCY OR
   1-61  PRIVATE AGENCY.  (a)  A regulatory agency or a private agency on
   1-62  behalf of a facility is entitled to obtain from the Department of
   1-63  Public Safety of the State of Texas criminal history record
   1-64  information maintained by the Department of Public Safety that
   1-65  relates to a person who is an applicant for employment at a
   1-66  facility licensed, certified, or under contract with the agency, as
   1-67  specified by Section 250.001(3), or who is an employee of that
   1-68  facility, and whose employment duties would or do involve direct
    2-1  contact with a consumer in a facility.
    2-2        (b)  A facility may pay a private agency to obtain criminal
    2-3  history record information for an applicant or employee described
    2-4  by Subsection (a) directly from the Department of Public Safety of
    2-5  the State of Texas or from the regulatory agency that obtains the
    2-6  information from the Department of Public Safety of the State of
    2-7  Texas regarding that facility.
    2-8        (c)  The regulatory agency or private agency, as appropriate,
    2-9  shall forward criminal history record information received under
   2-10  this section to the facility requesting the information.
   2-11        (d)  A regulatory agency may adopt rules relating to the
   2-12  processing of information requested or obtained under this chapter.
   2-13        Sec. 250.003 <250.002>.  Verification of Employability;
   2-14  Discharge.  (a)  A facility may not employ a person in a position
   2-15  the duties of which involve direct contact with a consumer in the
   2-16  facility if the facility determines, as a result <results> of a
   2-17  criminal history check, <reveal> that a person has been convicted
   2-18  of an offense listed in this chapter that bars employment or that a
   2-19  conviction is a contraindication to employment with the consumers
   2-20  the facility serves, and if the applicant is a nurse aide, until
   2-21  the facility further verifies that the applicant is listed in the
   2-22  nurse aide registry and verifies that the applicant is not
   2-23  designated in the registry as having a finding entered into the
   2-24  registry concerning abuse, neglect, or mistreatment of a consumer
   2-25  of a facility, or misappropriation of a consumer's property.  A
   2-26  person licensed under another law of this state is exempt from the
   2-27  requirements of this chapter.
   2-28        (b)  The facility may not employ an applicant covered by
   2-29  Subsection (a) <the applicant if it is notified by the department
   2-30  that a conviction bars employment>, except that in an emergency
   2-31  requiring immediate employment, a facility may hire on a temporary
   2-32  or interim basis a person not listed in the registry pending the
   2-33  results of a criminal conviction check, which must be requested
   2-34  <submitted> within 72 hours of employment.  The request shall be
   2-35  mailed, sent by telephonic facsimile machine, sent by electronic
   2-36  means, or otherwise forwarded to the facility's regulatory agency
   2-37  by the facility or a private agency working with the facility, or
   2-38  to the Department of Public Safety of the State of Texas by a
   2-39  private agency working with the facility.
   2-40        (c)  A facility shall immediately discharge any employee in a
   2-41  position the duties of which involve direct contact with a consumer
   2-42  in the facility who is designated in the nurse aide registry as
   2-43  having committed an act of abuse, neglect, or mistreatment of a
   2-44  consumer of a facility, or misappropriation of a consumer's
   2-45  property, or whose criminal history check reveals conviction of a
   2-46  crime that bars employment or that the facility determines is a
   2-47  contraindication to employment as provided by this chapter.
   2-48        Sec. 250.004 <250.003>.  Criminal History Record of
   2-49  Employees.  (a)  Identifying information, including mailing
   2-50  addresses, of employees in direct contact with consumers in covered
   2-51  facilities shall be submitted to the Department of Public Safety to
   2-52  obtain the person's criminal conviction record when the person
   2-53  applies for employment and at other times as the <department or
   2-54  the> facility may determine appropriate.
   2-55        (b)  If the Department of Public Safety reports <to the
   2-56  department> that a person has a criminal conviction of any kind,
   2-57  the conviction shall be reviewed by the facility <department> to
   2-58  determine if the conviction may bar the person from employment in a
   2-59  facility under Section <250.005 or> 250.006 or if the conviction
   2-60  may be a contraindication to employment.
   2-61        Sec. 250.005 <250.004>.  Notice and Opportunity TO BE HEARD
   2-62  CONCERNING ACCURACY OF INFORMATION <FOR ADMINISTRATIVE REVIEW>.
   2-63  (a)  If a facility <the department> believes that a conviction may
   2-64  bar a person from employment in a facility under Section <250.005
   2-65  or> 250.006 or may be a contraindication to employment, the
   2-66  <department shall notify the> facility shall notify the <and>
   2-67  applicant or employee.
   2-68        (b)  The Department of Public Safety of the State of Texas
   2-69  shall give a person notified under Subsection (a) the opportunity
   2-70  to be heard concerning the accuracy of the criminal history record
    3-1  information and shall notify the facility if inaccurate information
    3-2  is discovered.  <The notification shall state that the finding of a
    3-3  criminal conviction that may bar employment is a preliminary
    3-4  finding and that the person has the right to object to the accuracy
    3-5  of the report and to object to the finding that the crime is one
    3-6  that bars employment under Section 250.005 or 250.006.  If a crime
    3-7  is one that requires the consideration of mitigating factors under
    3-8  Section 250.006, the notification shall also state that the person
    3-9  has the right to submit documentation concerning the misdemeanor
   3-10  classification of the offense, the age of the person when the
   3-11  offense was committed, rehabilitation including employment history
   3-12  in a facility, or mitigating circumstances when the offense was
   3-13  committed.  The right to request removal of the bar to employment
   3-14  does not extend to any finding by a court involving abuse, neglect,
   3-15  or mistreatment of a consumer of a facility.>
   3-16        <(c)  The notification shall state:>
   3-17              <(1)  that the person may submit a written request, not
   3-18  later than the 20th day after the date the notification is
   3-19  received, for an administrative review of the criminal history
   3-20  report;>
   3-21              <(2)  the name of the office, including its address, to
   3-22  which the request must be submitted; and>
   3-23              <(3)  that the failure to request an administrative
   3-24  review will cause the department to designate the person as
   3-25  "unemployable" in the registry, if the person is an applicant for a
   3-26  nurse aide position, and to bar the person from employment in any
   3-27  facility.>
   3-28        <(d)  On receipt of a timely request, an administrative
   3-29  review shall be provided in accordance with board rules.  The
   3-30  review is not subject to the Administrative Procedure and Texas
   3-31  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes). The
   3-32  review shall be conducted by an administrative review panel
   3-33  consisting of five members and at least two alternates appointed by
   3-34  the board.  The panel shall be composed of representatives of the
   3-35  facilities covered by this chapter, a representative of employees
   3-36  of those facilities, and representatives of consumers.  The review
   3-37  panel shall consider each application submitted in writing by an
   3-38  applicant to determine if mitigating circumstances existed at the
   3-39  time the crime was committed or whether the applicant has been
   3-40  substantially rehabilitated since that time.  The panel's decision
   3-41  shall be made solely from the documentation and other information
   3-42  submitted by the applicant.  The department may not be required to
   3-43  make an independent investigation of the applicant's allegations.
   3-44  If the panel finds the documentation submitted by the applicant is
   3-45  insufficient to remove the bar to employment, the panel shall
   3-46  provide the applicant an opportunity to appear personally before
   3-47  the panel and offer further information.>
   3-48        <(e)  A designation of "unemployable" may not be entered in
   3-49  the registry or a facility may not be notified of unemployability
   3-50  until the person affected has exhausted all appeals available under
   3-51  board rules.>
   3-52        <(f)  A nurse aide for whom there is a finding of abuse,
   3-53  neglect, or mistreatment of a consumer of a facility, or
   3-54  misappropriation of a consumer's property, and who is listed in the
   3-55  nurse aide registry as "unemployable" as a result of those
   3-56  findings, shall be offered the opportunity of a hearing under board
   3-57  rules.  The hearing is not subject to the Administrative Procedure
   3-58  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   3-59  Statutes).  The hearing may be conducted and decided by a hearing
   3-60  officer designated by the department.>
   3-61        Sec. 250.006 <250.005>.  Convictions Barring Employment.
   3-62  <(a)>  A person convicted of an offense listed in this section may
   3-63  not be employed in a position the duties of which involve direct
   3-64  contact with a consumer in a facility:
   3-65              (1)  an offense under Chapter 19, Penal Code (criminal
   3-66  homicide);
   3-67              (2)  an offense under Chapter 20, Penal Code
   3-68  (kidnapping and false imprisonment);
   3-69              (3)  an offense under Section 21.11, Penal Code
   3-70  (indecency with a child);
    4-1              (4)  an offense under Section 25.031, Penal Code
    4-2  (agreement to abduct from custody);
    4-3              (5)  <an offense under Section 25.06, Penal Code
    4-4  (solicitation of a child);>
    4-5              <(6)>  an offense under Section 25.08 <25.11>, Penal
    4-6  Code (sale or purchase of a child);
    4-7              (6) <(7)>  an offense under Section 28.02, Penal Code
    4-8  (arson);
    4-9              (7) <(8)>  an offense under Section 29.02, Penal Code
   4-10  (robbery); or
   4-11              (8) <(9)>  an offense under Section 29.03, Penal Code
   4-12  (aggravated robbery).
   4-13        <(b)  When the proceedings under Section 250.004 are
   4-14  complete, the department shall enter in the nurse aide registry, if
   4-15  the person is an applicant for a nurse aide position, the
   4-16  designation "unemployable" under the name of a person convicted of
   4-17  an offense listed in this section and shall notify the facility
   4-18  that employs the person of the designation.>
   4-19        <Sec. 250.006.  ><Convictions Potentially Barring Employment><.
   4-20  (a)  A person convicted of an offense listed in this section may
   4-21  not be employed in a position the duties of which involve direct
   4-22  contact with a consumer in a facility unless:>
   4-23              <(1)  the offense for which the person was convicted is
   4-24  punishable as a Class C misdemeanor; or>
   4-25              <(2)  the department finds through its administrative
   4-26  review process that the person is unlikely to be a threat to the
   4-27  consumers or property of the consumers in a facility.>
   4-28        <(b)  In making a finding under Subsection (a)(2), the
   4-29  department shall consider the misdemeanor classification of the
   4-30  offense, the age of the person at the time the offense was
   4-31  committed, the length of time since the offense was committed,
   4-32  evidence of rehabilitation including employment history in a
   4-33  facility, or mitigating circumstances when the offense was
   4-34  committed.>
   4-35        <(c)  A conviction for any of the following offenses may bar
   4-36  employment under this section:>
   4-37              <(1)  an offense under Chapter 22, Penal Code
   4-38  (assaultive offenses);>
   4-39              <(2)  an offense under Chapter 30, Penal Code (burglary
   4-40  and criminal trespass);>
   4-41              <(3)  an offense under Chapter 31, Penal Code (theft);>
   4-42              <(4)  an offense under Chapter 46, Penal Code
   4-43  (weapons);>
   4-44              <(5)  a felony violation of a statute intended to
   4-45  control the possession or distribution of a substance included in
   4-46  Chapter 481, Government Code (Texas Controlled Substances Act);>
   4-47              <(6)  an offense under Chapter 32, Penal Code (fraud);>
   4-48              <(7)  an offense under Section 21.07, Penal Code
   4-49  (public lewdness);>
   4-50              <(8)  an offense under Section 21.08, Penal Code
   4-51  (indecent exposure); or>
   4-52              <(9)  an offense under Chapter 43, Penal Code (public
   4-53  indecency).>
   4-54        <(d)  Except as provided by Subsection (a), and when the
   4-55  proceedings under Section 250.004 are completed, the department
   4-56  shall enter in the nurse aide registry, if the person is an
   4-57  applicant for a nurse aide position, the designation "unemployable"
   4-58  under the name of a person found to have been convicted of an
   4-59  offense listed in this section and shall notify the facility that
   4-60  employs the person of the designation.>
   4-61        <(e)  If the department finds that a person is unlikely to be
   4-62  a threat as provided by Subsection (a)(2), the department shall
   4-63  note in the nurse aide registry that the person's conviction has
   4-64  been reviewed and excepted from the bar to employment.>
   4-65        Sec. 250.007.  Records Privileged.  (a)  The criminal history
   4-66  records are for the exclusive use of the regulatory agency,
   4-67  <department and> the requesting facility, the private agency on
   4-68  behalf of the requesting facility, and the applicant or employee
   4-69  who is the subject of the records.
   4-70        (b)  All criminal records and reports and the information
    5-1  they contain that are received by the regulatory agency or private
    5-2  agency for the purpose of being forwarded to the requesting
    5-3  facility <department> are privileged information <and are for the
    5-4  exclusive use of the department>.
    5-5        (c)  The criminal records and reports and the information
    5-6  they contain may not be released or otherwise disclosed to any
    5-7  person or agency except on court order or with the written consent
    5-8  of the person being investigated.
    5-9        Sec. 250.008.  Criminal Penalty.  (a)  A person commits an
   5-10  offense if the person releases or otherwise discloses any
   5-11  information received under this chapter except as prescribed by
   5-12  Section 250.007(b) or (c).
   5-13        (b)  An offense under this section is a Class A misdemeanor.
   5-14        Sec. 250.009.  CIVIL LIABILITY.  (a)  A facility or an
   5-15  officer or employee of a facility is not civilly liable for failure
   5-16  to comply with this chapter if the facility makes a good faith
   5-17  effort to comply.
   5-18        (b)  A regulatory agency is not civilly liable to a person
   5-19  for criminal history record information forwarded to a requesting
   5-20  facility in accordance with this chapter.
   5-21        SECTION 2.  The importance of this legislation and the
   5-22  crowded condition of the calendars in both houses create an
   5-23  emergency and an imperative public necessity that the
   5-24  constitutional rule requiring bills to be read on three several
   5-25  days in each house be suspended, and this rule is hereby suspended,
   5-26  and that this Act take effect and be in force from and after its
   5-27  passage, and it is so enacted.
   5-28                               * * * * *