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 * * * * *