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.