76R13546 MCK-D
By Zaffirini S.B. No. 967
Substitute the following for S.B. No. 967:
By Maxey C.S.S.B. No. 967
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 on a typewritten form to the Department of Public Safety to obtain
1-13 the person's criminal conviction record when the person applies
1-14 for employment and at other times as the facility may determine
1-15 appropriate. In this subsection, "identifying information"
1-16 includes:
1-17 (1) the complete name, race, and sex of the employee;
1-18 (2) any known identifying number of the employee,
1-19 including social security number, driver's license number, or state
1-20 identification number; and
1-21 (3) the employee's date of birth.
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 human
2-3 services.
2-4 (2) "Department" means the Texas Department of Human
2-5 Services.
2-6 (3) "Employee" means a person who:
2-7 (A) works at a facility;
2-8 (B) is an individual who provides personal care
2-9 services, active treatment, or any other personal services to a
2-10 resident or consumer of the facility;
2-11 (C) is not licensed by an agency of the state to
2-12 perform the services the employee performs at the facility; and
2-13 (D) is not a nurse aide employed by a nursing
2-14 facility.
2-15 (4) "Facility" means:
2-16 (A) a facility licensed by the department; or
2-17 (B) an adult foster care provider that contracts
2-18 with the department.
2-19 Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the
2-20 department receives a report that an employee of a facility has
2-21 abused, neglected, or exploited a resident or consumer of a
2-22 facility or misappropriated a resident's or consumer's property,
2-23 the department shall investigate the report to determine whether
2-24 the employee has committed the act of abuse, neglect, exploitation,
2-25 or misappropriation.
2-26 Sec. 253.003. DETERMINATION; NOTICE. (a) If, after an
2-27 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
3-27 occurrence of the violation.
4-1 (c) Based on the findings of fact and conclusions of law and
4-2 the recommendations of the hearings examiner, the commissioner or
4-3 the commissioner's designee by order may find that an act of
4-4 misconduct has occurred. If the commissioner or the commissioner's
4-5 designee finds that an act of misconduct has occurred, the
4-6 commissioner or the commissioner's designee shall issue an order
4-7 approving the determination.
4-8 Sec. 253.005. NOTICE; JUDICIAL REVIEW. (a) The department
4-9 shall give notice of the order under Section 253.004 to the
4-10 employee alleged to have committed the act of misconduct. The
4-11 notice must include:
4-12 (1) separate statements of the findings of fact and
4-13 conclusions of law;
4-14 (2) a statement of the right of the employee to
4-15 judicial review of the order; and
4-16 (3) a statement that the incident of misconduct will
4-17 be recorded in the registry under Section 253.007 if:
4-18 (A) the employee does not request judicial
4-19 review of the determination; or
4-20 (B) the determination is sustained by the court.
4-21 (b) Not later than the 30th day after the date on which the
4-22 decision becomes final as provided by Chapter 2001, Government
4-23 Code, the employee may file a petition for judicial review
4-24 contesting the finding of an act of misconduct. If the employee
4-25 does not request judicial review of the determination, the
4-26 department shall record the incident of misconduct in the registry
4-27 under Section 253.007.
5-1 (c) Judicial review of the order:
5-2 (1) is instituted by filing a petition as provided by
5-3 Subchapter G, Chapter 2001, Government Code; and
5-4 (2) is under the substantial evidence rule.
5-5 (d) If the court sustains the finding of the occurrence of
5-6 an act of misconduct, the department shall record the incident of
5-7 misconduct in the registry under Section 253.007.
5-8 Sec. 253.006. INFORMAL PROCEEDINGS. The department by rule
5-9 shall adopt procedures governing informal proceedings held in
5-10 compliance with Section 2001.056, Government Code.
5-11 Sec. 253.007. EMPLOYEE MISCONDUCT REGISTRY. (a) If an
5-12 employee abuses, neglects, or exploits a resident or consumer of a
5-13 facility or misappropriates a resident's or consumer's property,
5-14 the department shall make a record of the employee's name, the
5-15 employee's address, the employee's social security number, the name
5-16 of the facility, the address of the facility, the date of the act
5-17 of misconduct, and a description of the act of misconduct.
5-18 (b) If an agency of another state or the federal government
5-19 finds that an employee has abused, neglected, or exploited a
5-20 resident or consumer of a facility or misappropriated a resident's
5-21 or consumer's property, the department may make a record in the
5-22 employee misconduct registry of the employee's name, the employee's
5-23 address, the employee's social security number, the name of the
5-24 facility, the address of the facility, the date of the act of
5-25 misconduct, and a description of the act of misconduct.
5-26 (c) The department shall make the registry available to the
5-27 public.
6-1 Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
6-2 facility may hire an employee, the facility shall search the
6-3 employee misconduct registry under this chapter and the nurse aide
6-4 registry maintained under the Omnibus Budget Reconciliation Act of
6-5 1987 (Pub. L. No. 100-203) to determine whether the person is
6-6 designated in either registry as having abused, neglected, or
6-7 exploited a resident or consumer of a facility.
6-8 (b) A facility may not employ a person who is listed in
6-9 either registry as having abused, neglected, or exploited a
6-10 resident or consumer of a facility.
6-11 Sec. 253.009. NOTIFICATION. (a) Each facility shall notify
6-12 its employees in a manner prescribed by the department:
6-13 (1) about the employee misconduct registry; and
6-14 (2) that an employee may not be employed if the
6-15 employee is listed in the registry.
6-16 (b) The department shall adopt rules to implement this
6-17 section.
6-18 SECTION 3. This Act takes effect September 1, 1999, and
6-19 applies only to an act of misconduct that occurs on or after that
6-20 date.
6-21 SECTION 4. The importance of this legislation and the
6-22 crowded condition of the calendars in both houses create an
6-23 emergency and an imperative public necessity that the
6-24 constitutional rule requiring bills to be read on three several
6-25 days in each house be suspended, and this rule is hereby suspended.