By: Zaffirini S.B. No. 967
A BILL TO BE ENTITLED
AN ACT
1-1 relating to creating a registry for acts of misconduct of certain
1-2 employees of facilities licensed by, or certain entities that
1-3 contract with, the Texas Department of Human Services.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
1-6 amended by adding Chapter 253 to read as follows:
1-7 CHAPTER 253. EMPLOYEE MISCONDUCT REGISTRY
1-8 Sec. 253.001. DEFINITIONS. In this chapter:
1-9 (1) "Commissioner" means the commissioner of human
1-10 services.
1-11 (2) "Department" means the Texas Department of Human
1-12 Services.
1-13 (3) "Employee" means a person who:
1-14 (A) works at a facility;
1-15 (B) is an individual who provides personal care
1-16 services, active treatment, or any other personal services to a
1-17 resident or consumer of the facility;
1-18 (C) is not licensed by an agency of the state to
1-19 perform the services the employee performs at the facility; and
1-20 (D) is not a nurse aide employed by a nursing
1-21 facility.
1-22 (4) "Facility" means:
1-23 (A) a facility licensed by the department; or
1-24 (B) an adult foster care provider that contracts
2-1 with the department.
2-2 Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the
2-3 department receives a report that an employee of a facility has
2-4 abused, neglected, or exploited a resident or consumer of a
2-5 facility or misappropriated a resident's or consumer's property,
2-6 the department shall investigate the report to determine whether
2-7 the employee has committed the act of abuse, neglect, exploitation,
2-8 or misappropriation.
2-9 Sec. 253.003. DETERMINATION; NOTICE. (a) If, after an
2-10 investigation, the department determines that the employee abused,
2-11 neglected, or exploited a resident or consumer of the facility or
2-12 misappropriated a resident's or consumer's property, the department
2-13 shall give written notice of the department's findings. The notice
2-14 must include:
2-15 (1) a brief summary of the department's findings; and
2-16 (2) a statement of the person's right to a hearing on
2-17 the occurrence of the misconduct.
2-18 (b) Not later than the 30th day after the date on which the
2-19 notice is received, the employee notified may accept the
2-20 determination of the department made under this section or may make
2-21 a written request for a hearing on that determination.
2-22 (c) If the employee notified of the violation accepts the
2-23 determination of the department or fails to timely respond to the
2-24 notice, the commissioner or the commissioner's designee shall issue
2-25 an order approving the determination and ordering that the incident
2-26 of misconduct be recorded in the registry under Section 253.007.
3-1 Sec. 253.004. HEARING; ORDER. (a) If the employee requests
3-2 a hearing, the department shall:
3-3 (1) set a hearing;
3-4 (2) give written notice of the hearing to the
3-5 employee; and
3-6 (3) designate a hearings examiner to conduct the
3-7 hearing.
3-8 (b) The hearings examiner shall make findings of fact and
3-9 conclusions of law and shall promptly issue to the commissioner or
3-10 the commissioner's designee a proposal for decision as to the
3-11 occurrence of the violation.
3-12 (c) Based on the findings of fact and conclusions of law and
3-13 the recommendations of the hearings examiner, the commissioner or
3-14 the commissioner's designee by order may find that an act of
3-15 misconduct has occurred. If the commissioner or the commissioner's
3-16 designee finds that an act of misconduct has occurred, the
3-17 commissioner or the commissioner's designee shall issue an order
3-18 approving the determination and ordering that the incident of
3-19 misconduct be recorded in the registry under Section 253.007.
3-20 Sec. 253.005. NOTICE; JUDICIAL REVIEW. (a) The department
3-21 shall give notice of the order under Section 253.004 to the
3-22 employee alleged to have committed the act of misconduct. The
3-23 notice must include:
3-24 (1) separate statements of the findings of fact and
3-25 conclusions of law; and
3-26 (2) a statement of the right of the employee to
4-1 judicial review of the order.
4-2 (b) Not later than the 30th day after the date on which the
4-3 decision becomes final as provided by Chapter 2001, Government
4-4 Code, the employee may file a petition for judicial review
4-5 contesting the finding of an act of misconduct.
4-6 (c) Judicial review of the order:
4-7 (1) is instituted by filing a petition as provided by
4-8 Subchapter G, Chapter 2001, Government Code; and
4-9 (2) is under the substantial evidence rule.
4-10 (d) If the court sustains the finding of the occurrence of
4-11 an act of misconduct, the department shall keep the incident listed
4-12 in the registry. If the court does not sustain the finding of the
4-13 occurrence of an act of misconduct, the court shall order the
4-14 department to remove the incident from the registry.
4-15 Sec. 253.006. INFORMAL PROCEEDINGS. The department by rule
4-16 shall adopt procedures governing informal proceedings held in
4-17 compliance with Section 2001.056, Government Code.
4-18 Sec. 253.007. EMPLOYEE MISCONDUCT REGISTRY. (a) If an
4-19 employee abuses, neglects, or exploits a resident or consumer of a
4-20 facility or misappropriates a resident's or consumer's property,
4-21 the department shall make a record of the employee's name, the
4-22 employee's address, the employee's social security number, the name
4-23 of the facility, the address of the facility, the date of the act
4-24 of misconduct, and a description of the act of misconduct.
4-25 (b) If an agency of another state or the federal government
4-26 finds that an employee has abused, neglected, or exploited a
5-1 resident or consumer of a facility or misappropriated a resident's
5-2 or consumer's property, the department may make a record in the
5-3 employee misconduct registry of the employee's name, the employee's
5-4 address, the employee's social security number, the name of the
5-5 facility, the address of the facility, the date of the act of
5-6 misconduct, and a description of the act of misconduct.
5-7 (c) The department shall make the registry available to the
5-8 public.
5-9 Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
5-10 facility may hire an employee, the facility shall search the
5-11 employee misconduct registry under this chapter and the nurse aide
5-12 registry maintained under the Omnibus Budget Reconciliation Act of
5-13 1987 (Pub. L. No. 100-203) to determine whether the person is
5-14 designated in either registry as having abused, neglected, or
5-15 exploited a resident or consumer of a facility.
5-16 (b) A facility may not employ a person who is listed in
5-17 either registry as having abused, neglected, or exploited a
5-18 resident or consumer of a facility.
5-19 SECTION 2. This Act takes effect September 1, 1999, and
5-20 applies only to an act of misconduct that occurs on or after that
5-21 date.
5-22 SECTION 3. The importance of this legislation and the
5-23 crowded condition of the calendars in both houses create an
5-24 emergency and an imperative public necessity that the
5-25 constitutional rule requiring bills to be read on three several
5-26 days in each house be suspended, and this rule is hereby suspended.