1-1 By: Naishtat (Senate Sponsor - Zaffirini) H.B. No. 1237
1-2 (In the Senate - Received from the House April 26, 1999;
1-3 April 27, 1999, read first time and referred to Committee on Human
1-4 Services; May 6, 1999, reported favorably by the following vote:
1-5 Yeas 5, Nays 0; May 6, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to suits for retaliation against volunteers and employees
1-9 of nursing homes.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 242.133, Health and Safety Code, is
1-12 amended to read as follows:
1-13 Sec. 242.133. [SUIT FOR] RETALIATION AGAINST EMPLOYEES
1-14 PROHIBITED. (a) In this section, "employee" means a person who is
1-15 an employee of an institution or any other person who provides
1-16 services for an institution for compensation, including a contract
1-17 laborer for the institution.
1-18 (b) An employee [A person] has a cause of action against an
1-19 institution, or the owner or another employee of the institution,
1-20 that suspends or terminates the employment of the person or
1-21 otherwise disciplines or discriminates or retaliates against the
1-22 employee [person] for reporting to the employee's supervisor, an
1-23 administrator of the institution, a state regulatory agency, or a
1-24 law enforcement agency a violation of law, including a violation of
1-25 this chapter or a rule adopted under this chapter [making a report
1-26 or complaint under this chapter to the department or a law
1-27 enforcement agency, for reporting the abuse or neglect or other
1-28 complaint to the person's supervisors], or for initiating or
1-29 cooperating in any investigation or proceeding of a governmental
1-30 entity relating to care, services, or conditions at the
1-31 institution.
1-32 (c) [(b)] The petitioner may recover:
1-33 (1) the greater of $1,000 or actual damages, including
1-34 damages for mental anguish even if an injury other than mental
1-35 anguish is not shown and damages for lost wages if the petitioner's
1-36 employment was suspended or terminated;
1-37 (2) exemplary damages;
1-38 (3) court costs; and
1-39 (4) reasonable attorney's fees.
1-40 (d) [(c)] In addition to the amounts that may be recovered
1-41 under Subsection (c) [(b)], a person whose employment is suspended
1-42 or terminated is entitled to appropriate injunctive relief,
1-43 including, if applicable:
1-44 (1) reinstatement in the person's former position; and
1-45 (2) reinstatement of lost fringe benefits or seniority
1-46 rights.
1-47 (e) [(d)] The petitioner, not later than the 90th day after
1-48 the date on which the person's employment is suspended or
1-49 terminated, must bring suit or notify the Texas Workforce
1-50 [Employment] Commission of the petitioner's intent to sue under
1-51 this section. A petitioner who notifies the Texas Workforce
1-52 [Employment] Commission under this subsection must bring suit not
1-53 later than the 90th day after the date of the delivery of the
1-54 notice to the commission. On receipt of the notice, the commission
1-55 shall notify the institution of the petitioner's intent to bring
1-56 suit under this section.
1-57 (f) [(e)] The petitioner has the burden of proof, except
1-58 that there is a rebuttable presumption that the person's employment
1-59 was suspended or terminated for reporting abuse or neglect if the
1-60 person is suspended or terminated within 60 days after the date on
1-61 which the person reported in good faith.
1-62 (g) [(f)] A suit under this section may be brought in the
1-63 district court of the county in which:
1-64 (1) the plaintiff resides;
2-1 (2) the plaintiff was employed by the defendant; or
2-2 (3) the defendant conducts business.
2-3 (h) [(g)] Each institution shall require each employee of
2-4 the institution, as a condition of employment with the institution,
2-5 to sign a statement that the employee understands the employee's
2-6 rights under this section. The statement must be part of the
2-7 statement required under Section 242.122. If an institution does
2-8 not require an employee to read and sign the statement, the periods
2-9 under Subsection (e) [(d)] do not apply, and the petitioner must
2-10 bring suit not later than the second anniversary of the date on
2-11 which the person's employment is suspended or terminated.
2-12 SECTION 2. Section 242.1335, Health and Safety Code, is
2-13 amended to read as follows:
2-14 Sec. 242.1335. [SUIT FOR] RETALIATION AGAINST VOLUNTEERS AND
2-15 RESIDENTS [RESIDENT]. (a) An institution may not retaliate or
2-16 discriminate against a volunteer or a resident because [if] the
2-17 volunteer, the resident, the resident's guardian, or any other
2-18 person:
2-19 (1) makes a complaint or files a grievance concerning
2-20 the facility;
2-21 (2) [or] reports a violation of law, including a
2-22 violation of this chapter or a rule adopted under this chapter; or
2-23 (3) initiates or cooperates in an investigation or
2-24 proceeding of a governmental entity relating to care, services, or
2-25 conditions at the institution [in accordance with this chapter].
2-26 (b) A volunteer or a resident who is retaliated or
2-27 discriminated against in violation of Subsection (a) is entitled to
2-28 sue for:
2-29 (1) injunctive relief;
2-30 (2) the greater of $1,000 or actual damages, including
2-31 damages for mental anguish even if an injury other than mental
2-32 anguish is not shown;
2-33 (3) exemplary damages;
2-34 (4) court costs; and
2-35 (5) reasonable attorney's fees.
2-36 (c) A volunteer or resident who seeks relief under this
2-37 section must report the alleged violation not later than the 180th
2-38 day after the date on which the alleged violation of this section
2-39 occurred or was discovered by the volunteer or resident through
2-40 reasonable diligence.
2-41 (d) A suit under this section may be brought in the district
2-42 court of the county in which the institution is located or in a
2-43 district court of Travis County.
2-44 SECTION 3. Section 242.042, Health and Safety Code, is
2-45 amended by amending Subsection (a) and adding Subsection (d) to
2-46 read as follows:
2-47 (a) Each institution shall prominently and conspicuously
2-48 post for display in a public area of the institution that is
2-49 readily available to residents, employees, and visitors:
2-50 (1) the license issued under this chapter;
2-51 (2) a sign prescribed by the department that specifies
2-52 complaint procedures established under this chapter or rules
2-53 adopted under this chapter and that specifies how complaints may be
2-54 registered with the department;
2-55 (3) a notice in a form prescribed by the department
2-56 stating that licensing inspection reports and other related reports
2-57 which show deficiencies cited by the department are available at
2-58 the institution for public inspection and providing the
2-59 department's toll-free telephone number that may be used to obtain
2-60 information concerning the institution;
2-61 (4) a concise summary of the most recent inspection
2-62 report relating to the institution;
2-63 (5) notice that the department can provide summary
2-64 reports relating to the quality of care, recent investigations,
2-65 litigation, and other aspects of the operation of the institution;
2-66 (6) notice that the Texas Board of Nursing Facility
2-67 Administrators can provide information about the nursing facility
2-68 administrator;
2-69 (7) any notice or written statement required to be
3-1 posted under Section 242.072(c); [and]
3-2 (8) notice that informational materials relating to
3-3 the compliance history of the institution are available for
3-4 inspection at a location in the institution specified by the sign;
3-5 and
3-6 (9) notice that employees, other staff, and residents
3-7 are protected from discrimination or retaliation as provided by
3-8 Sections 242.133 and 242.1335.
3-9 (d) The notice required by Subsection (a)(9) must be posted
3-10 in English and a second language as required by department rule.
3-11 SECTION 4. Sections 1 and 2 of this Act apply only to a
3-12 cause of action that accrues on or after the effective date of this
3-13 Act. A cause of action that accrues before the effective date of
3-14 this Act is governed by the law as it existed immediately before
3-15 the effective date of this Act, and that law is continued in effect
3-16 for this purpose.
3-17 SECTION 5. This Act takes effect September 1, 1999.
3-18 SECTION 6. The importance of this legislation and the
3-19 crowded condition of the calendars in both houses create an
3-20 emergency and an imperative public necessity that the
3-21 constitutional rule requiring bills to be read on three several
3-22 days in each house be suspended, and this rule is hereby suspended.
3-23 * * * * *