AN ACT
 1-1     relating to creating a registry for acts of misconduct for and
 1-2     criminal  background checks on certain employees of certain health
 1-3     care facilities that are licensed or certified by or that contract
 1-4     with the state.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Subsection (a), Section 250.004, Health and
 1-7     Safety Code, is amended to read as follows:
 1-8           (a)  Identifying information[, including mailing addresses,]
 1-9     of an employee [employees] in direct contact with a consumer
1-10     [consumers] in a covered facility [facilities] shall be submitted
1-11     on a typewritten form to the Department of Public Safety to obtain
1-12     the person's criminal conviction record when the person applies for
1-13     employment and at other times as the facility may determine
1-14     appropriate.  In this subsection, "identifying information"
1-15     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; and
1-20                 (3)  the employee's date of birth.
1-21           SECTION 2.  Subtitle B, Title 4, Health and Safety Code, is
1-22     amended by adding Chapter 253 to read as follows:
1-23                 CHAPTER 253.  EMPLOYEE MISCONDUCT REGISTRY
1-24           Sec. 253.001.  DEFINITIONS.  In this chapter:
 2-1                 (1)  "Commissioner" means the commissioner of human
 2-2     services.
 2-3                 (2)  "Department" means the Texas Department of Human
 2-4     Services.
 2-5                 (3)  "Employee" means a person who:
 2-6                       (A)  works at a facility;
 2-7                       (B)  is an individual who provides personal care
 2-8     services, active treatment, or any other personal services to a
 2-9     resident or consumer of the facility;
2-10                       (C)  is not licensed by an agency of the state to
2-11     perform the services the employee performs at the facility; and
2-12                       (D)  is not a nurse aide employed by a nursing
2-13     facility.
2-14                 (4)  "Facility" means:
2-15                       (A)  a facility licensed by the department; or
2-16                       (B)  an adult foster care provider that contracts
2-17     with the department.
2-18           Sec. 253.002.  INVESTIGATION BY DEPARTMENT.  If the
2-19     department receives a report that an employee of a facility has
2-20     abused, neglected, or exploited a resident or consumer of a
2-21     facility or misappropriated a resident's or consumer's property,
2-22     the department shall investigate the report to determine whether
2-23     the employee has committed the act of abuse, neglect, exploitation,
2-24     or misappropriation.
2-25           Sec. 253.003.  DETERMINATION; NOTICE.  (a)  If, after an
2-26     investigation, the department determines that the employee abused,
 3-1     neglected, or exploited a resident or consumer of the facility or
 3-2     misappropriated a resident's or consumer's property, the department
 3-3     shall give written notice of the department's findings.  The notice
 3-4     must include:
 3-5                 (1)  a brief summary of the department's findings; and
 3-6                 (2)  a statement of the person's right to a hearing on
 3-7     the occurrence of the misconduct.
 3-8           (b)  Not later than the 30th day after the date on which the
 3-9     notice is received, the employee notified may accept the
3-10     determination of the department made under this section or may make
3-11     a written request for a hearing on that determination.
3-12           (c)  If the employee notified of the violation accepts the
3-13     determination of the department or fails to timely respond to the
3-14     notice, the commissioner or the commissioner's designee shall issue
3-15     an order approving the determination and ordering that the incident
3-16     of misconduct be recorded in the registry under Section 253.007.
3-17           Sec. 253.004.  HEARING; ORDER.  (a)  If the employee requests
3-18     a hearing, the department shall:
3-19                 (1)  set a hearing;
3-20                 (2)  give written notice of the hearing to the
3-21     employee; and
3-22                 (3)  designate a hearings examiner to conduct the
3-23     hearing.
3-24           (b)  The hearings examiner shall make findings of fact and
3-25     conclusions of law and shall promptly issue to the commissioner or
3-26     the commissioner's designee a proposal for decision as to the
 4-1     occurrence of the violation.
 4-2           (c)  Based on the findings of fact and conclusions of law and
 4-3     the recommendations of the hearings examiner, the commissioner or
 4-4     the commissioner's designee by order may find that an act of
 4-5     misconduct has occurred.  If the commissioner or the commissioner's
 4-6     designee finds that an act of misconduct has occurred, the
 4-7     commissioner or the commissioner's designee shall issue an order
 4-8     approving the determination.
 4-9           Sec. 253.005.  NOTICE; JUDICIAL REVIEW.  (a)  The department
4-10     shall give notice of the order under Section 253.004 to the
4-11     employee alleged to have committed the act of misconduct.  The
4-12     notice must include:
4-13                 (1)  separate statements of the findings of fact and
4-14     conclusions of law;
4-15                 (2)  a statement of the right of the employee to
4-16     judicial review of the order; and
4-17                 (3)  a statement that the incident of misconduct will
4-18     be recorded in the registry under Section 253.007 if:
4-19                       (A)  the employee does not request judicial
4-20     review of the determination; or
4-21                       (B)  the determination is sustained by the court.
4-22           (b)  Not later than the 30th day after the date on which the
4-23     decision becomes final as provided by Chapter 2001, Government
4-24     Code, the employee may file a petition for judicial review
4-25     contesting the finding of an act of misconduct. If the employee
4-26     does not request judicial review of the determination, the
 5-1     department shall record the incident of misconduct in the registry
 5-2     under Section 253.007.
 5-3           (c)  Judicial review of the order:
 5-4                 (1)  is instituted by filing a petition as provided by
 5-5     Subchapter G, Chapter 2001, Government Code; and
 5-6                 (2)  is under the substantial evidence rule.
 5-7           (d)  If the court sustains the finding of the occurrence of
 5-8     an act of misconduct, the department shall record the incident of
 5-9     misconduct in the registry under Section 253.007.
5-10           Sec. 253.006.  INFORMAL PROCEEDINGS.  The department by rule
5-11     shall adopt procedures governing informal proceedings held in
5-12     compliance with Section 2001.056, Government Code.
5-13           Sec. 253.007.  EMPLOYEE MISCONDUCT REGISTRY.  (a)  If an
5-14     employee abuses, neglects, or exploits a resident or consumer of a
5-15     facility or misappropriates a resident's or consumer's property,
5-16     the department shall make a record of the employee's name, the
5-17     employee's address, the employee's social security number, the name
5-18     of the facility, the address of the facility, the date of the act
5-19     of misconduct, and a description of the act of misconduct.
5-20           (b)  If an agency of another state or the federal government
5-21     finds that an employee has abused, neglected, or exploited a
5-22     resident or consumer of a facility or misappropriated a resident's
5-23     or consumer's property, the department may make a record in the
5-24     employee misconduct registry of the employee's name, the employee's
5-25     address, the employee's social security number, the name of the
5-26     facility, the address of the facility, the date of the act of
 6-1     misconduct, and a description of the act of misconduct.
 6-2           (c)  The department shall make the registry available to the
 6-3     public.
 6-4           Sec. 253.008.  VERIFICATION OF EMPLOYABILITY.  (a)  Before a
 6-5     facility may hire an employee, the facility shall search the
 6-6     employee misconduct registry under this chapter and the nurse aide
 6-7     registry maintained under the Omnibus Budget Reconciliation Act of
 6-8     1987 (Pub. L. No. 100-203) to determine whether the person is
 6-9     designated in either registry as having abused, neglected, or
6-10     exploited a resident or consumer of a facility.
6-11           (b)  A facility may not employ a person who is listed in
6-12     either registry as having abused, neglected, or exploited a
6-13     resident or consumer of a facility.
6-14           Sec. 253.009.  NOTIFICATION.  (a)  Each facility shall notify
6-15     its employees in a manner prescribed by the department:
6-16                 (1)  about the employee misconduct registry; and
6-17                 (2)  that an employee may not be employed if the
6-18     employee is listed in the registry.
6-19           (b)  The department shall adopt rules to implement this
6-20     section.
6-21           SECTION 3.  This Act takes effect September 1, 1999, and
6-22     applies only to an act of misconduct that occurs on or after that
6-23     date.
6-24           SECTION 4.  The importance of this legislation and the
6-25     crowded condition of the calendars in both houses create an
6-26     emergency and an imperative public necessity that the
 7-1     constitutional rule requiring bills to be read on three several
 7-2     days in each house be suspended, and this rule is hereby suspended.
         _______________________________     _______________________________
             President of the Senate              Speaker of the House
               I hereby certify that S.B. No. 967 passed the Senate on
         April 19, 1999, by a viva-voce vote; and that the Senate concurred
         in House amendment on May 28, 1999, by a viva-voce vote.
                                             _______________________________
                                                 Secretary of the Senate
               I hereby certify that S.B. No. 967 passed the House, with
         amendment, on May 25, 1999, by a non-record vote.
                                             _______________________________
                                                 Chief Clerk of the House
         Approved:
         _______________________________
                     Date
         _______________________________
                   Governor