HBA-DMD H.B. 3386 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3386
By: Hilderbran
Human Services
3/29/1999
Introduced



BACKGROUND AND PURPOSE 

The Texas Department of Human Services currently maintains a registry of
nurse aides in Texas nursing facilities, which is utilized in performing
background checks on nurse aides that have applied for jobs in nursing
facilities (facility). The current registry tracks nurse aides, but not
other employees. 

H.B. 3386 requires an agency that has regulatory authority over the
facility (department), to investigate complaints accusing an employee of
the facility of abusing or neglecting patients. This bill requires a
department to give written notice of the department's findings. It
establishes a hearing process if the employee requests a hearing and
establishes a process for judicial review. H.B. 3386 requires the
department to adopt procedural rules that govern the informal proceedings.
This bill requires the department to make public a record of certain
information regarding an employee who has neglected or abused a patient.
This bill also requires a facility to search the registry before hiring an
employee. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Department of Human Services, the
Department of Health, and the Department of Mental Health and Retardation
in SECTION 2 (Section 253.006, Health and Safety Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 250.004(a), Health and Safety Code, to specify
the provisions included in "identifying information." Makes conforming
changes.    

SECTION 2.  Amends Subtitle B, Title 4, Health and Safety Code, by adding
Chapter 253, as follows: 

CHAPTER 253.  EMPLOYEE MISCONDUCT REGISTRY

Sec. 253.001. DEFINITIONS. Defines "commissioner," "department," "direct
contact working with a consumer," "employee," and "facility." 

Sec. 253.002. INVESTIGATION BY DEPARTMENT. Requires an agency that has
regulatory authority over the facility (department), upon receiving a
complaint that an employee of a facility has abused, neglected, or
exploited a consumer of a facility or misappropriated a consumer's
property, to investigate the complaint in order to determine whether the
employee has committed the act of abuse, neglect, exploitation, or
misappropriation.  

Sec. 253.003. DETERMINATION; NOTICE. (a) Requires a department to give
written notice of the department's findings, if after  investigating a
complaint the department determines that the employee abused, neglected, or
exploited a consumer of the facility or misappropriated a consumer's
property. Specifies provisions for the notice. 

(b) Authorizes the employee notified of the department's findings to either
accept the  determination of the department or to make a written request
for a hearing on that determination, no later than 20 days after the notice
is received.  

(c) Requires the commissioner or the commissioner's designee, if the
employee notified of the violation accepts the determination of the
department or fails to timely respond to the notice, to issue an order
approving the determination and ordering that the incident of misconduct be
recorded in the registry under Section 253.007.  

Sec. 253.004. HEARING; ORDER. (a) Sets requirements for the department if
the employee requests a hearing. 

(b) Requires the hearings examiner to make findings of fact and conclusions
of law and to promptly issue a proposal for decision as to the occurrence
of the violation to the commissioner or the commissioner's designee.  

(c) Authorizes the commissioner or the commissioner's designee by order to
find that an act of misconduct has occurred, based on the findings of fact
and conclusions of law and the recommendations of the hearings examiner.
Requires the commissioner or the commissioner's designee, if the
commissioner or the commissioner's designee finds that an act of misconduct
has occurred, to issue an order approving the determination and ordering
that the incident of misconduct be recorded in the registry under Section
253.007.  

Sec. 253.005. NOTICE; JUDICIAL REVIEW. (a) Requires the department to give
notice of the order under Section 253.004 to the employee who is alleged to
have committed the act of misconduct. Specifies provisions for the notice. 

(b) Authorizes the employee, no later than 30 days after the decision is
final as provided by Chapter 2001 (Administrative Procedure), Government
Code, to file a petition for judicial review contesting the finding of an
act of misconduct.  

(c) Sets forth that judicial review of the order is instituted by filing a
petition as provided by Subchapter G (Contested Cases; Judicial Review),
Chapter 2001, Government Code, and is under the substantial evidence rule.  

(d) Requires the department, if the court sustains the finding of the
occurrence of an act of misconduct, to keep the incident listed in the
registry. Requires the court, if the court does not sustain the finding of
the occurrence of an act of misconduct, to order the department to remove
the incident from the registry.  

Sec. 253.006. INFORMAL PROCEEDINGS. Requires the department by rule to
adopt procedures governing informal proceedings held in compliance with
Section 2001.056 (Informal Disposition of Contested Case), Government Code.

Sec. 253.007. EMPLOYEE MISCONDUCT REGISTRY. (a) Requires the department, if
an employee abuses, neglects, or exploits a consumer of a facility or
misappropriates a consumer's property, to make a record of the employee's
name, the employee's address, the employee's social security number, the
name of the facility, the address of the facility, the date of the act of
misconduct, and a description of the act of misconduct.  

(b) Requires the department to make the registry available to the public. 

Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Requires a facility,
before the facility may employ a person who will have direct working
contact with a consumer, to search the registry to determine whether the
person has abused, neglected, or exploited a consumer of a facility.  

(b) Prohibits a facility from employing a person who has abused, neglected,
or exploited a consumer of a facility.  
 
SECTION 3.Effective date: September 1, 1999, and applies only to an act of
misconduct that occurs on or after that date.  

SECTION 4.Emergency clause.