HBA-DMD C.S.S.B. 967 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 967 By: Zaffirini Human Services 4/26/1999 Committee Report (Substituted) 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. C.S.S.B. 967 requires the Texas Department of Human Services (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. C.S.S.B. 967 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 in SECTION 2 (Sections 253.006 and 253.009, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 250.004(a), Health and Safety Code, to remove an employee's mailing address as something that is considered identifying information. Specifies that identifying information must be submitted on a typewritten form to the Department of Public Safety. Defines "identifying information." Makes conforming and nonsubstantive 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," "employee," and "facility." Sec. 253.002. INVESTIGATION BY DEPARTMENT. Requires the Texas Department of Human Services (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 report 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 30 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. 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. Requires the department to record the incident of misconduct in the registry under Section 253.007, if the employee does not request judicial review of the determination. (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 record the incident of misconduct in the registry under Section 253.007. 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 resident's or 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) Authorizes the department, if an agency of another state or the federal government finds that an employee has abused, neglected, or exploited a resident or consumer of a facility or misappropriated a resident's or consumer's property, to make a record in the employee misconduct registry 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. (c) Requires the department to make the registry available to the public. Sec. 253.008. VERIFICATION OF EMPLOYABILITY. Requires a facility, before the facility may hire an employee, to search the registry and the nurse aide registry maintained under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) to determine whether the person has abused, neglected, or exploited a resident or consumer of a facility. Prohibits a facility from employing a person who has abused, neglected, or exploited a resident or consumer of a facility. Sec. 253.009. NOTIFICATION. Requires each facility to notify its employees in a manner prescribed by the department about the employee misconduct registry, and that an employee is prohibited from being employed if the employee is listed in the registry. Requires the department to adopt rules to implement this section. 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. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 967 modifies the original in the caption by adding criminal backgrounds checks for employees. This substitute amends Section 250.004(a), Health and Safety Code, in new SECTION 1, to remove an employee's mailing address as something that is considered identifying information. This substitute specifies that identifying information must be submitted on a typewritten form to the Department of Public Safety. Defines "identifying information." This substitute also makes conforming and nonsubstantive changes. Section 250.004, Health and Safety Code, was not addressed by the original. This substitute modifies proposed Section 253.004, Health and Safety Code, in SECTION 2, as redesignated from SECTION 1 of the original by removing the requirement of the commissioner or the commissioner's designee, if the commissioner or the commissioner's designee finds that an act of misconduct has occurred, to order that the incident of misconduct be recorded in the registry under Section 253.007. This substitute modifies proposed Section 253.005, Health and Safety Code, in SECTION 2, by including a statement that the incident of misconduct will be recorded in the registry under Section 253.007, provided certain conditions are met, in the existing list of provisions included in the notice to an employee who is alleged to have committed the act of misconduct. This substitute also modifies proposed Subsection (b) to require the Texas Department of Human Services (department) to record the incident of misconduct in the registry under Section 253.007, if the employee does not request judicial review of the determination. This substitute modifies proposed Subsection (d), by removing the requirement of a court to order the department to remove the incident from the registry, if the court does not sustain the finding of the occurrence of an act of misconduct. This substitute adds new Section 253.009, Health and Safety Code, in SECTION 2, which requires each facility to notify its employees in a manner prescribed by the department about the employee misconduct registry, and that an employee is prohibited from being employed if the employee is listed in the registry. This substitute also requires the department to adopt rules to implement this section. SECTIONS 2 (effective date, prospective clause) and 3 (emergency clause) of the original as redesignated as SECTIONS 3 and 4 of the substitute.