By Naishtat H.B. No. 1237
76R2770 CMR-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to suits for retaliation against nonemployees and
1-3 employees 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) An employee [A person] has a cause of action
1-9 against an institution, or the owner or another employee of the
1-10 institution, that suspends or terminates the employment of the
1-11 person or otherwise disciplines or discriminates or retaliates
1-12 against the employee [person] for reporting to the employee's
1-13 supervisor, an administrator of the institution, a state regulatory
1-14 agency, or a law enforcement agency a violation of law, including a
1-15 violation of this chapter or a rule adopted under this chapter
1-16 [making a report or complaint under this chapter to the department
1-17 or a law enforcement agency, for reporting the abuse or neglect or
1-18 other complaint to the person's supervisors], or for initiating or
1-19 cooperating in any investigation or proceeding of a governmental
1-20 entity relating to care, services, or conditions at the
1-21 institution.
1-22 (b) The petitioner may recover:
1-23 (1) the greater of $1,000 or actual damages, including
1-24 damages for mental anguish even if an injury other than mental
2-1 anguish is not shown and damages for lost wages if the petitioner's
2-2 employment was suspended or terminated;
2-3 (2) exemplary damages;
2-4 (3) court costs; and
2-5 (4) reasonable attorney's fees.
2-6 (c) In addition to the amounts that may be recovered under
2-7 Subsection (b), a person whose employment is suspended or
2-8 terminated is entitled to, if applicable:
2-9 (1) reinstatement in the person's former position; and
2-10 (2) reinstatement of lost fringe benefits or seniority
2-11 rights.
2-12 (d) The petitioner, not later than the 180th [90th] day
2-13 after the date on which the person's employment is suspended or
2-14 terminated, must bring suit or notify the Texas Workforce
2-15 [Employment] Commission of the petitioner's intent to sue under
2-16 this section. A petitioner who notifies the Texas Workforce
2-17 [Employment] Commission under this subsection must bring suit not
2-18 later than the 180th [90th] day after the date of the delivery of
2-19 the notice to the commission. On receipt of the notice, the
2-20 commission shall notify the institution of the petitioner's intent
2-21 to bring suit under this section.
2-22 (e) The petitioner has the burden of proof, except that
2-23 there is a rebuttable presumption that the person's employment was
2-24 suspended or terminated for reporting abuse or neglect if the
2-25 person is suspended or terminated within 60 days after the date on
2-26 which the person reported in good faith.
2-27 (f) A suit under this section may be brought in the district
3-1 court of the county in which:
3-2 (1) the plaintiff resides;
3-3 (2) the plaintiff was employed by the defendant; or
3-4 (3) the defendant conducts business.
3-5 (g) Each institution shall require each employee of the
3-6 institution, as a condition of employment with the institution, to
3-7 sign a statement that the employee understands the employee's
3-8 rights under this section. The statement must be part of the
3-9 statement required under Section 242.122. If an institution does
3-10 not require an employee to read and sign the statement, the periods
3-11 under Subsection (d) do not apply, and the petitioner must bring
3-12 suit not later than the second anniversary of the date on which the
3-13 person's employment is suspended or terminated.
3-14 SECTION 2. Section 242.1335, Health and Safety Code, is
3-15 amended to read as follows:
3-16 Sec. 242.1335. [SUIT FOR] RETALIATION AGAINST NONEMPLOYEES
3-17 AND RESIDENTS [RESIDENT]. (a) In this section, "nonemployee"
3-18 means any person who is not an employee of an institution,
3-19 including a contract laborer or volunteer.
3-20 (b) An institution may not retaliate or discriminate against
3-21 a nonemployee or a resident because [if] the nonemployee, the
3-22 resident, the resident's guardian, or any other person:
3-23 (1) makes a complaint or files a grievance concerning
3-24 the facility;
3-25 (2) [or] reports a violation of law, including a
3-26 violation of this chapter or a rule adopted under this chapter; or
3-27 (3) initiates or cooperates in an investigation or
4-1 proceeding of a governmental entity relating to care, services, or
4-2 conditions at the institution [in accordance with this chapter].
4-3 (c) [(b)] A nonemployee or a resident who is retaliated or
4-4 discriminated against in violation of Subsection (b) [(a)] is
4-5 entitled to sue for:
4-6 (1) injunctive relief;
4-7 (2) the greater of $1,000 or actual damages,
4-8 including:
4-9 (A) damages for mental anguish even if an injury
4-10 other than mental anguish is not shown; and
4-11 (B) damages for lost wages if the nonemployee's
4-12 employment was suspended or terminated;
4-13 (3) exemplary damages;
4-14 (4) court costs; and
4-15 (5) reasonable attorney's fees.
4-16 (d) [(c)] A nonemployee or resident who seeks relief under
4-17 this section must report the alleged violation not later than the
4-18 180th day after the date on which the alleged violation of this
4-19 section occurred or was discovered by the nonemployee or resident
4-20 through reasonable diligence.
4-21 (e) [(d)] A suit under this section may be brought in the
4-22 district court of the county in which the institution is located or
4-23 in a 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.