By Hilderbran                                         H.B. No. 3386
         76R3992 MCK-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to creating a registry for acts of misconduct for and
 1-3     criminal  background checks on certain employees of certain health
 1-4     care facilities that are licensed or certified by or that contract
 1-5     with the state.
 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-7           SECTION 1.  Section 250.004(a), Health and Safety Code, is
 1-8     amended to read as follows:
 1-9           (a)  Identifying information[, including mailing addresses,]
1-10     of  an employee [employees] in direct contact with a consumer
1-11     [consumers] in a covered facility [facilities] shall be submitted
1-12     to the Department of Public Safety to obtain the person's  criminal
1-13     conviction record when the person applies for employment and at
1-14     other times as the facility may determine appropriate.  In this
1-15     subsection, "identifying information" includes:
1-16                 (1)  the complete name, race, and sex of the employee;
1-17                 (2)  any known identifying number of the employee,
1-18     including social security number, driver's license number, or state
1-19     identification number;
1-20                 (3)  the employee's date of birth; and
1-21                 (4)  the employee's mailing address.
1-22           SECTION 2.  Subtitle B, Title 4, Health and Safety Code, is
1-23     amended by adding Chapter 253 to read as follows:
1-24                 CHAPTER 253.  EMPLOYEE MISCONDUCT REGISTRY
 2-1           Sec. 253.001.  DEFINITIONS.  In this chapter:
 2-2                 (1)  "Commissioner" means the commissioner of the
 2-3     agency that has regulatory authority over the facility.
 2-4                 (2)  "Department" means the agency that has regulatory
 2-5     authority over the facility.
 2-6                 (3)  "Direct contact working with a consumer" means any
 2-7     contact with a resident or client in a facility covered by this
 2-8     chapter.
 2-9                 (4)  "Employee" means a person who:
2-10                       (A)  works at a facility;
2-11                       (B)  has direct contact working with a consumer;
2-12     and
2-13                       (C)  is not licensed by an agency of the state to
2-14     perform the services the employee performs at the facility.
2-15                 (5)  "Facility" means:
2-16                       (A)  a nursing home, custodial care home, or
2-17     other institution licensed by the Texas Department of Human
2-18     Services under Chapter 242;
2-19                       (B)  a personal care facility licensed by the
2-20     Texas Department of Human Services under Chapter 247;
2-21                       (C)  a home health agency licensed by the Texas
2-22     Department of Health under Chapter 142;
2-23                       (D)  an adult day care facility or adult day
2-24     health care facility licensed by the Texas Department of Human
2-25     Services under Chapter 103, Human Resources Code;
2-26                       (E)  a facility for persons with mental
2-27     retardation licensed or certified by the Texas Department of Human
 3-1     Services;
 3-2                       (F)  an unlicensed attendant care agency that
 3-3     contracts with the Texas Department of Human Services;
 3-4                       (G)  an intermediate care facility for persons
 3-5     with mental retardation that is certified by the Texas Department
 3-6     of Human Services to participate in the Medicaid program under
 3-7     Title XIX of the Social Security Act (42 U.S.C.  Section 1396 et
 3-8     seq.), as amended;
 3-9                       (H)  an adult foster care provider that contracts
3-10     with the Texas Department of Human Services; or
3-11                       (I)  a facility that provides mental health
3-12     services and that is operated by or contracts with the Texas
3-13     Department of Mental Health and Mental Retardation.
3-14           Sec. 253.002.  INVESTIGATION BY DEPARTMENT.  If a department
3-15     receives a complaint that an employee of a facility has abused,
3-16     neglected, or exploited a consumer of a facility or misappropriated
3-17     a consumer's property, the department shall investigate the
3-18     complaint to determine whether the employee has committed the act
3-19     of abuse, neglect, exploitation, or misappropriation.
3-20           Sec. 253.003.  DETERMINATION; NOTICE.  (a)   If, after an
3-21     investigation, a department determines that the employee abused,
3-22     neglected, or exploited a consumer of the facility or
3-23     misappropriated a consumer's property, the department shall give
3-24     written notice of the department's findings.  The notice must
3-25     include:
3-26                 (1)  a brief summary of the department's findings; and
3-27                 (2)  a statement of the person's right to a hearing on
 4-1     the occurrence of the misconduct.
 4-2           (b)  Not later than the 20th day after the date on which the
 4-3     notice is received, the employee notified may accept the
 4-4     determination of the department made under this section or may make
 4-5     a written request for a hearing on that determination.
 4-6           (c)  If the employee notified of the violation accepts the
 4-7     determination of the department or fails to timely respond to the
 4-8     notice, the commissioner or the commissioner's designee shall issue
 4-9     an order approving the determination and ordering that the incident
4-10     of misconduct be recorded in the registry under Section 253.007.
4-11           Sec. 253.004.  HEARING; ORDER.  (a)  If the employee requests
4-12     a hearing, the department shall:
4-13                 (1)  set a hearing;
4-14                 (2)  give written notice of the hearing to the
4-15     employee; and
4-16                 (3)  designate a hearings examiner to conduct the
4-17     hearing.
4-18           (b)  The hearings examiner shall make findings of fact and
4-19     conclusions of law and shall promptly issue to the commissioner or
4-20     the commissioner's designee a proposal for decision as to the
4-21     occurrence of the violation.
4-22           (c)  Based on the findings of fact and conclusions of law and
4-23     the recommendations of the hearings examiner, the commissioner or
4-24     the commissioner's designee by order may find that an act of
4-25     misconduct has occurred.  If the commissioner or the commissioner's
4-26     designee finds that an act of misconduct has occurred, the
4-27     commissioner or the commissioner's designee shall issue an order
 5-1     approving the determination and ordering that the incident of
 5-2     misconduct be recorded in the registry under Section 253.007.
 5-3           Sec. 253.005.  NOTICE; JUDICIAL REVIEW.  (a)  The department
 5-4     shall give notice of the order under Section 253.004 to the
 5-5     employee alleged to have committed the act of misconduct.  The
 5-6     notice must include:
 5-7                 (1)  separate statements of the findings of fact and
 5-8     conclusions of law; and
 5-9                 (2)  a statement of the right of the employee to
5-10     judicial review of the order.
5-11           (b)  Not later than the 30th day after the date on which the
5-12     decision is final as provided by Chapter 2001, Government Code, the
5-13     employee may file a petition for judicial review contesting the
5-14     finding of an act of misconduct.
5-15           (c)  Judicial review of the order:
5-16                 (1)  is instituted by filing a petition as provided by
5-17     Subchapter G, Chapter 2001, Government Code; and
5-18                 (2)  is under the substantial evidence rule.
5-19           (d)  If the court sustains the finding of the occurrence of
5-20     an act of misconduct, the department shall keep the incident listed
5-21     in the registry.  If the court does not sustain the finding of the
5-22     occurrence of an act of misconduct, the court shall order the
5-23     department to remove the incident from the registry.
5-24           Sec. 253.006.  INFORMAL PROCEEDINGS.  The department by rule
5-25     shall adopt procedures governing informal proceedings held in
5-26     compliance with Section 2001.056, Government Code.
5-27           Sec. 253.007.  EMPLOYEE MISCONDUCT REGISTRY.  (a)  If an
 6-1     employee abuses, neglects, or exploits a consumer of a facility or
 6-2     misappropriates a consumer's property, the department shall make a
 6-3     record of the employee's name, the employee's address, the
 6-4     employee's social security number, the name of the facility, the
 6-5     address of the facility, the date of the act of misconduct, and a
 6-6     description of the act of misconduct.
 6-7           (b)  The department shall make the registry available to the
 6-8     public.
 6-9           Sec. 253.008.  VERIFICATION OF EMPLOYABILITY.  (a)  Before a
6-10     facility may employ a person who will have direct working contact
6-11     with a consumer, the facility shall search the registry to
6-12     determine whether the person is designated in the registry as
6-13     having abused, neglected, or exploited a consumer of a facility.
6-14           (b)  A facility may not employ a person who is listed in the
6-15     registry as having abused, neglected, or exploited a consumer of a
6-16     facility.
6-17           SECTION 3.  This Act takes effect September 1, 1999, and
6-18     applies only to an act of misconduct that occurs on or after that
6-19     date.
6-20           SECTION 4.  The importance of this legislation and the
6-21     crowded condition of the calendars in both houses create an
6-22     emergency and an imperative public necessity that the
6-23     constitutional rule requiring bills to be read on three several
6-24     days in each house be suspended, and this rule is hereby suspended.