76R8717 SMH-D
By Naishtat H.B. No. 2291
Substitute the following for H.B. No. 2291:
By Naishtat C.S.H.B. No. 2291
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of social workers and social work
1-3 associates; providing an administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 50.017, Human Resources Code, is amended
1-6 to read as follows:
1-7 Sec. 50.017. SOCIAL WORK ASSOCIATE. The board shall
1-8 consider the following as minimum evidence that an applicant is
1-9 qualified to be examined for a license as a social work associate:
1-10 (1) a baccalaureate degree in the behavioral or social
1-11 sciences or in a related field from an accredited educational
1-12 institution; and
1-13 (2) [the additional] satisfactory completion of a
1-14 reasonable specified number of years of actual and active social
1-15 work experience approved by the board[; or]
1-16 [(2) an associate of arts degree in the behavioral
1-17 sciences as determined by the board from an accredited educational
1-18 institution and the additional satisfactory completion of a
1-19 reasonable specified number of years of actual and active social
1-20 work experience approved by the board].
1-21 SECTION 2. Chapter 50, Human Resources Code, is amended by
1-22 adding Sections 50.0225-50.0228 to read as follows:
1-23 Sec. 50.0225. SUBPOENA. (a) The board may request and, if
1-24 necessary, compel by subpoena the attendance of witnesses for
2-1 examination under oath and the production for inspection and
2-2 copying of books, accounts, records, papers, correspondence,
2-3 documents, and other evidence relevant to the investigation of an
2-4 alleged violation of this chapter.
2-5 (b) If a person fails to comply with a subpoena issued under
2-6 this section, the board, acting through the attorney general, may
2-7 file suit to enforce the subpoena in a district court in Travis
2-8 County or in the county in which a hearing conducted by the board
2-9 may be held. On finding that good cause exists for the issuance of
2-10 the subpoena, the court shall order compliance with the
2-11 requirements of the subpoena. Failure to obey the order of the
2-12 court may be punished by the court as contempt.
2-13 Sec. 50.0226. REPORT OF VIOLATION. In a written, signed
2-14 report to the appropriate licensing board, agency, or facility, a
2-15 person licensed under this chapter may report an incident that the
2-16 person has reasonable cause to believe has exposed a client to
2-17 substantial risk of harm, including:
2-18 (1) a failure to provide care that conforms to the
2-19 minimum standards of acceptable and prevailing professional
2-20 practice;
2-21 (2) illegal billing practices; or
2-22 (3) falsification of records.
2-23 Sec. 50.0227. REPORTING IMMUNITY. A person who, without
2-24 malice, makes a report authorized, or reasonably believed to be
2-25 authorized, under Section 50.0226:
2-26 (1) is immune from civil liability; and
2-27 (2) may not be subjected by the person's employer to
3-1 other retaliatory action as a result of making the report.
3-2 Sec. 50.0228. CAUSE OF ACTION FOR RETALIATION. (a) A
3-3 person named as a defendant in a civil action or subjected by the
3-4 person's employer to other retaliatory action as a result of filing
3-5 a report authorized, or reasonably believed to be authorized, under
3-6 Section 50.0226 may file a counterclaim in the pending action or
3-7 prove a cause of action in a subsequent suit to recover defense
3-8 costs, including reasonable attorney's fees and actual and punitive
3-9 damages, if the suit or retaliatory action is determined to be
3-10 frivolous, unreasonable, or taken in bad faith.
3-11 (b) A person may not suspend or terminate the employment of,
3-12 or otherwise discipline or discriminate against, a person who makes
3-13 a report, without malice, under Section 50.0226.
3-14 (c) A person who makes a report under Section 50.0226 has a
3-15 cause of action against a person who violates Subsection (b) and
3-16 may recover:
3-17 (1) the greater of:
3-18 (A) actual damages, including damages for mental
3-19 anguish even if no other injury is shown; or
3-20 (B) $1,000;
3-21 (2) exemplary damages;
3-22 (3) court costs; and
3-23 (4) reasonable attorney's fees.
3-24 (d) In addition to the amount recovered under Subsection
3-25 (c), a person whose employment is suspended or terminated in
3-26 violation of this section is entitled to:
3-27 (1) reinstatement in the employee's former position or
4-1 severance pay in an amount equal to three months of the employee's
4-2 most recent salary; and
4-3 (2) compensation for wages lost during the period of
4-4 suspension or termination.
4-5 (e) A person who brings an action under this section has the
4-6 burden of proof. It is a rebuttable presumption that the person's
4-7 employment was suspended or terminated for making a report under
4-8 Section 50.0226 if:
4-9 (1) the person was suspended or terminated within 60
4-10 days after the date the report was made; and
4-11 (2) the person to whom the report that is the subject
4-12 of the cause of action was made or the court determines that the
4-13 report was:
4-14 (A) authorized under Section 50.0226; and
4-15 (B) made without malice.
4-16 (f) An action under this section may be brought in a
4-17 district court of the county in which:
4-18 (1) the plaintiff resides;
4-19 (2) the plaintiff was employed by the defendant; or
4-20 (3) the defendant conducts business.
4-21 SECTION 3. Section 50.023(e), Human Resources Code, is
4-22 amended to read as follows:
4-23 (e) If a person's license or certificate or order of
4-24 recognition has been expired for one year or longer, the person may
4-25 not renew the license or order of recognition. The person may
4-26 obtain a new license or order of recognition by submitting to
4-27 reexamination[, if an examination was originally required, and
5-1 complying with the requirements and procedures for obtaining an
5-2 original license or certificate or order of recognition]. However,
5-3 the board may renew without reexamination an expired license or
5-4 certificate or order of recognition of a person who was licensed in
5-5 this state, moved to another state, and is currently licensed or
5-6 certified and has been in practice in the other state for the two
5-7 years preceding application. The person must pay to the department
5-8 a fee that is equal to the examination fee for the license or order
5-9 of recognition.
5-10 SECTION 4. Section 50.028, Human Resources Code, is amended
5-11 to read as follows:
5-12 Sec. 50.028. CIVIL PENALTY [VIOLATIONS]. A person who
5-13 violates this chapter or a rule or order of the board pertaining to
5-14 the practice of social work is subject to a civil penalty of not
5-15 less than $50 nor more than $500 for each day of violation.
5-16 SECTION 5. The heading to Section 50.029, Human Resources
5-17 Code, is amended to read as follows:
5-18 Sec. 50.029. SUIT FOR CIVIL PENALTY OR INJUNCTIVE RELIEF.
5-19 SECTION 6. Chapter 50, Human Resources Code, is amended by
5-20 adding Section 50.0295 to read as follows:
5-21 Sec. 50.0295. ADMINISTRATIVE PENALTY. (a) The board may
5-22 impose an administrative penalty on a person licensed under this
5-23 chapter who violates this chapter or a rule or order adopted under
5-24 this chapter.
5-25 (b) The amount of the penalty may not be less than $50 or
5-26 exceed $500 for each violation. Each day a violation continues or
5-27 occurs is a separate violation for the purpose of imposing a
6-1 penalty.
6-2 (c) The amount shall be based on:
6-3 (1) the seriousness of the violation, including the
6-4 nature, circumstances, extent, and gravity of the violation;
6-5 (2) the economic harm caused by the violation;
6-6 (3) the history of previous violations;
6-7 (4) the amount necessary to deter a future violation;
6-8 (5) efforts to correct the violation; and
6-9 (6) any other matter that justice may require.
6-10 (d) If the executive director determines that a violation
6-11 occurred, the director may issue to the board a report stating:
6-12 (1) the facts on which the determination is based; and
6-13 (2) the director's recommendation on the imposition of
6-14 the penalty, including a recommendation on the amount of the
6-15 penalty.
6-16 (e) Within 14 days after the date the report is issued, the
6-17 executive director shall give written notice of the report to the
6-18 person.
6-19 (f) The notice must:
6-20 (1) include a brief summary of the alleged violation;
6-21 (2) state the amount of the recommended penalty; and
6-22 (3) inform the person of the person's right to a
6-23 hearing on the occurrence of the violation, the amount of the
6-24 penalty, or both.
6-25 (g) Within 10 days after the date the person receives the
6-26 notice, the person in writing may:
6-27 (1) accept the determination and recommended penalty
7-1 of the executive director; or
7-2 (2) make a request for a hearing on the occurrence of
7-3 the violation, the amount of the penalty, or both.
7-4 (h) If the person accepts the determination and recommended
7-5 penalty of the executive director, the board by order shall approve
7-6 the determination and impose the recommended penalty.
7-7 (i) If the person requests a hearing or fails to respond in
7-8 a timely manner to the notice, the executive director shall set a
7-9 hearing and give written notice of the hearing to the person. An
7-10 administrative law judge of the State Office of Administrative
7-11 Hearings shall hold the hearing.
7-12 (j) The administrative law judge shall make findings of fact
7-13 and conclusions of law and promptly issue to the board a proposal
7-14 for a decision about the occurrence of the violation and the amount
7-15 of a proposed penalty.
7-16 (k) Based on the findings of fact, conclusions of law, and
7-17 proposal for decision, the board by order may:
7-18 (1) find that a violation occurred and impose a
7-19 penalty; or
7-20 (2) find that a violation did not occur.
7-21 (l) The notice of the board's order given to the person must
7-22 include a statement of the right of the person to judicial review
7-23 of the order.
7-24 (m) Within 30 days after the date the board's order becomes
7-25 final, the person shall:
7-26 (1) pay the penalty; or
7-27 (2) file a petition for judicial review contesting the
8-1 occurrence of the violation, the amount of the penalty, or both.
8-2 (n) Within the 30-day period prescribed by Subsection (m), a
8-3 person who files a petition for judicial review may:
8-4 (1) stay enforcement of the penalty by:
8-5 (A) paying the penalty to the court for
8-6 placement in an escrow account; or
8-7 (B) giving the court a supersedeas bond approved
8-8 by the court that:
8-9 (i) is for the amount of the penalty; and
8-10 (ii) is effective until all judicial
8-11 review of the board's order is final; or
8-12 (2) request the court to stay enforcement of the
8-13 penalty by:
8-14 (A) filing with the court a sworn affidavit of
8-15 the person stating that the person is financially unable to pay the
8-16 penalty and is financially unable to give the supersedeas bond; and
8-17 (B) giving a copy of the affidavit to the
8-18 executive director by certified mail.
8-19 (o) If the executive director receives a copy of an
8-20 affidavit under Subsection (n)(2), the director may file with the
8-21 court, within five days after the date the copy is received, a
8-22 contest to the affidavit. The court shall hold a hearing on the
8-23 facts alleged in the affidavit as soon as practicable and shall
8-24 stay the enforcement of the penalty on finding that the alleged
8-25 facts are true. The person who files an affidavit has the burden
8-26 of proving that the person is financially unable to pay the penalty
8-27 and to give a supersedeas bond.
9-1 (p) If the person does not pay the penalty and the
9-2 enforcement of the penalty is not stayed, the penalty may be
9-3 collected.
9-4 (q) The attorney general may sue to collect the penalty.
9-5 (r) If the court sustains the finding that a violation
9-6 occurred, the court may uphold or reduce the amount of the penalty
9-7 and order the person to pay the full or reduced amount of the
9-8 penalty.
9-9 (s) If the court does not sustain the finding that a
9-10 violation occurred, the court shall order that a penalty is not
9-11 owed.
9-12 (t) If the person paid the penalty and if the amount of the
9-13 penalty is reduced or the penalty is not upheld by the court, the
9-14 court shall order, when the court's judgment becomes final, that
9-15 the appropriate amount plus accrued interest be remitted to the
9-16 person.
9-17 (u) The interest accrues at the rate charged on loans to
9-18 depository institutions by the New York Federal Reserve Bank.
9-19 (v) The interest shall be paid for the period beginning on
9-20 the date the penalty is paid and ending on the date the penalty is
9-21 remitted.
9-22 (w) If the person gave a supersedeas bond and the penalty is
9-23 not upheld by the court, the court shall order, when the court's
9-24 judgment becomes final, the release of the bond.
9-25 (x) If the person gave a supersedeas bond and the amount of
9-26 the penalty is reduced, the court shall order the release of the
9-27 bond after the person pays the reduced amount.
10-1 (y) A proceeding under this section is a contested case
10-2 under Chapter 2001, Government Code.
10-3 SECTION 7. (a) This Act takes effect September 1, 1999.
10-4 (b) The change in law made by Sections 50.017 and 50.023(e),
10-5 Human Resources Code, as amended by this Act, applies only to a
10-6 person who files an application for a license or order of
10-7 recognition on or after the effective date of this Act. A person
10-8 who filed an application for a license or order of recognition
10-9 before the effective date of this Act is governed by the law in
10-10 effect on the date the application was filed, and the former law is
10-11 continued in effect for that purpose.
10-12 (c) The change in law made by Sections 50.0226-50.0228,
10-13 Human Resources Code, as added by this Act, applies only to a
10-14 report made on or after the effective date of this Act. A report
10-15 made before the effective date of this Act is governed by the law
10-16 in effect on the date the report was made, and the former law is
10-17 continued in effect for that purpose.
10-18 (d) The change in law made by Section 50.0295, Human
10-19 Resources Code, as added by this Act, applies only to a violation
10-20 committed on or after the effective date of this Act. For purposes
10-21 of this subsection, a violation is committed before the effective
10-22 date of this Act if any element of the violation occurs before that
10-23 date. A violation committed before the effective date of this Act
10-24 is covered by the law in effect when the violation was committed,
10-25 and the former law is continued in effect for that purpose.
10-26 SECTION 8. The importance of this legislation and the
10-27 crowded condition of the calendars in both houses create an
11-1 emergency and an imperative public necessity that the
11-2 constitutional rule requiring bills to be read on three several
11-3 days in each house be suspended, and this rule is hereby suspended.