By Naishtat H.B. No. 1237
76R10727 CMR-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to suits for retaliation against volunteers and employees
1-3 of nursing homes.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 242.133, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 242.133. [SUIT FOR] RETALIATION AGAINST EMPLOYEES
1-8 PROHIBITED. (a) In this section, "employee" means a person who is
1-9 an employee of an institution or any other person who provides
1-10 services for an institution for compensation, including a contract
1-11 laborer for the institution.
1-12 (b) An employee [A person] has a cause of action against an
1-13 institution, or the owner or another employee of the institution,
1-14 that suspends or terminates the employment of the person or
1-15 otherwise disciplines or discriminates or retaliates against the
1-16 employee [person] for reporting to the employee's supervisor, an
1-17 administrator of the institution, a state regulatory agency, or a
1-18 law enforcement agency a violation of law, including a violation of
1-19 this chapter or a rule adopted under this chapter [making a report
1-20 or complaint under this chapter to the department or a law
1-21 enforcement agency, for reporting the abuse or neglect or other
1-22 complaint to the person's supervisors], or for initiating or
1-23 cooperating in any investigation or proceeding of a governmental
1-24 entity relating to care, services, or conditions at the
2-1 institution.
2-2 (c) [(b)] The petitioner may recover:
2-3 (1) the greater of $1,000 or actual damages, including
2-4 damages for mental anguish even if an injury other than mental
2-5 anguish is not shown and damages for lost wages if the petitioner's
2-6 employment was suspended or terminated;
2-7 (2) exemplary damages;
2-8 (3) court costs; and
2-9 (4) reasonable attorney's fees.
2-10 (d) [(c)] In addition to the amounts that may be recovered
2-11 under Subsection (c) [(b)], a person whose employment is suspended
2-12 or terminated is entitled to appropriate injunctive relief,
2-13 including, if applicable:
2-14 (1) reinstatement in the person's former position; and
2-15 (2) reinstatement of lost fringe benefits or seniority
2-16 rights.
2-17 (e) [(d)] The petitioner, not later than the 90th day after
2-18 the date on which the person's employment is suspended or
2-19 terminated, must bring suit or notify the Texas Workforce
2-20 [Employment] Commission of the petitioner's intent to sue under
2-21 this section. A petitioner who notifies the Texas Workforce
2-22 [Employment] Commission under this subsection must bring suit not
2-23 later than the 90th day after the date of the delivery of the
2-24 notice to the commission. On receipt of the notice, the commission
2-25 shall notify the institution of the petitioner's intent to bring
2-26 suit under this section.
2-27 (f) [(e)] The petitioner has the burden of proof, except
3-1 that there is a rebuttable presumption that the person's employment
3-2 was suspended or terminated for reporting abuse or neglect if the
3-3 person is suspended or terminated within 60 days after the date on
3-4 which the person reported in good faith.
3-5 (g) [(f)] A suit under this section may be brought in the
3-6 district court of the county in which:
3-7 (1) the plaintiff resides;
3-8 (2) the plaintiff was employed by the defendant; or
3-9 (3) the defendant conducts business.
3-10 (h) [(g)] Each institution shall require each employee of
3-11 the institution, as a condition of employment with the institution,
3-12 to sign a statement that the employee understands the employee's
3-13 rights under this section. The statement must be part of the
3-14 statement required under Section 242.122. If an institution does
3-15 not require an employee to read and sign the statement, the periods
3-16 under Subsection (e) [(d)] do not apply, and the petitioner must
3-17 bring suit not later than the second anniversary of the date on
3-18 which the person's employment is suspended or terminated.
3-19 SECTION 2. Section 242.1335, Health and Safety Code, is
3-20 amended to read as follows:
3-21 Sec. 242.1335. [SUIT FOR] RETALIATION AGAINST VOLUNTEERS AND
3-22 RESIDENTS [RESIDENT]. (a) An institution may not retaliate or
3-23 discriminate against a volunteer or a resident because [if] the
3-24 volunteer, the resident, the resident's guardian, or any other
3-25 person:
3-26 (1) makes a complaint or files a grievance concerning
3-27 the facility;
4-1 (2) [or] reports a violation of law, including a
4-2 violation of this chapter or a rule adopted under this chapter; or
4-3 (3) initiates or cooperates in an investigation or
4-4 proceeding of a governmental entity relating to care, services, or
4-5 conditions at the institution [in accordance with this chapter].
4-6 (b) A volunteer or a resident who is retaliated or
4-7 discriminated against in violation of Subsection (a) is entitled to
4-8 sue for:
4-9 (1) injunctive relief;
4-10 (2) the greater of $1,000 or actual damages, including
4-11 damages for mental anguish even if an injury other than mental
4-12 anguish is not shown;
4-13 (3) exemplary damages;
4-14 (4) court costs; and
4-15 (5) reasonable attorney's fees.
4-16 (c) A volunteer or resident who seeks relief under this
4-17 section must report the alleged violation not later than the 180th
4-18 day after the date on which the alleged violation of this section
4-19 occurred or was discovered by the volunteer or resident through
4-20 reasonable diligence.
4-21 (d) A suit under this section may be brought in the district
4-22 court of the county in which the institution is located or in a
4-23 district court of Travis County.
4-24 SECTION 3. Section 242.042, Health and Safety Code, is
4-25 amended by amending Subsection (a) and adding Subsection (d) to
4-26 read as follows:
4-27 (a) Each institution shall prominently and conspicuously
5-1 post for display in a public area of the institution that is
5-2 readily available to residents, employees, and visitors:
5-3 (1) the license issued under this chapter;
5-4 (2) a sign prescribed by the department that specifies
5-5 complaint procedures established under this chapter or rules
5-6 adopted under this chapter and that specifies how complaints may be
5-7 registered with the department;
5-8 (3) a notice in a form prescribed by the department
5-9 stating that licensing inspection reports and other related reports
5-10 which show deficiencies cited by the department are available at
5-11 the institution for public inspection and providing the
5-12 department's toll-free telephone number that may be used to obtain
5-13 information concerning the institution;
5-14 (4) a concise summary of the most recent inspection
5-15 report relating to the institution;
5-16 (5) notice that the department can provide summary
5-17 reports relating to the quality of care, recent investigations,
5-18 litigation, and other aspects of the operation of the institution;
5-19 (6) notice that the Texas Board of Nursing Facility
5-20 Administrators can provide information about the nursing facility
5-21 administrator;
5-22 (7) any notice or written statement required to be
5-23 posted under Section 242.072(c); [and]
5-24 (8) notice that informational materials relating to
5-25 the compliance history of the institution are available for
5-26 inspection at a location in the institution specified by the sign;
5-27 and
6-1 (9) notice that employees, other staff, and residents
6-2 are protected from discrimination or retaliation as provided by
6-3 Sections 242.133 and 242.1335.
6-4 (d) The notice required by Subsection (a)(9) must be posted
6-5 in English and a second language as required by department rule.
6-6 SECTION 4. Sections 1 and 2 of this Act apply only to a
6-7 cause of action that accrues on or after the effective date of this
6-8 Act. A cause of action that accrues before the effective date of
6-9 this Act is governed by the law as it existed immediately before
6-10 the effective date of this Act, and that law is continued in effect
6-11 for this purpose.
6-12 SECTION 5. This Act takes effect September 1, 1999.
6-13 SECTION 6. The importance of this legislation and the
6-14 crowded condition of the calendars in both houses create an
6-15 emergency and an imperative public necessity that the
6-16 constitutional rule requiring bills to be read on three several
6-17 days in each house be suspended, and this rule is hereby suspended.