By Zaffirini                                           S.B. No. 967
         76R7148 MCK-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to creating a registry for acts of misconduct of certain
 1-3     employees of facilities licensed by the Texas Department of Human
 1-4     Services.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Subtitle B, Title 4, Health and Safety Code, is
 1-7     amended by adding Chapter 253 to read as follows:
 1-8                 CHAPTER 253.  EMPLOYEE MISCONDUCT REGISTRY
 1-9           Sec. 253.001.  DEFINITIONS.  In this chapter:
1-10                 (1)  "Commissioner" means the commissioner of human
1-11     services.
1-12                 (2)  "Department" means the Texas Department of Human
1-13     Services.
1-14                 (3)  "Direct contact working with a consumer" means any
1-15     contact with a resident or client in a facility covered by this
1-16     chapter.
1-17                 (4)  "Employee" means a person who:
1-18                       (A)  works at a facility;
1-19                       (B)  has direct contact working with a consumer;
1-20     and
1-21                       (C)  is not licensed by an agency of the state to
1-22     perform the services the employee performs at the facility.
1-23                 (5)  "Facility" means:
1-24                       (A)  a facility licensed by the department; or
 2-1                       (B)  an adult foster care provider that contracts
 2-2     with the department.
 2-3           Sec. 253.002.  INVESTIGATION BY DEPARTMENT.  If the
 2-4     department receives a complaint that an employee of a facility has
 2-5     abused, neglected, or exploited a consumer of a facility or
 2-6     misappropriated a consumer's property, the department shall
 2-7     investigate the complaint to determine whether the employee has
 2-8     committed the act of abuse, neglect, exploitation, or
 2-9     misappropriation.
2-10           Sec. 253.003.  DETERMINATION; NOTICE.  (a)  If, after an
2-11     investigation, the department determines that the employee abused,
2-12     neglected, or exploited a consumer of the facility or
2-13     misappropriated a consumer's property, the department shall give
2-14     written notice of the department's findings.  The notice must
2-15     include:
2-16                 (1)  a brief summary of the department's findings; and
2-17                 (2)  a statement of the person's right to a hearing on
2-18     the occurrence of the misconduct.
2-19           (b)  Not later than the 20th day after the date on which the
2-20     notice is received, the employee notified may accept the
2-21     determination of the department made under this section or may make
2-22     a written request for a hearing on that determination.
2-23           (c)  If the employee notified of the violation accepts the
2-24     determination of the department or fails to timely respond to the
2-25     notice, the commissioner or the commissioner's designee shall issue
2-26     an order approving the determination and ordering that the incident
2-27     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
3-27     judicial review of the order.
 4-1           (b)  Not later than the 30th day after the date on which the
 4-2     decision is final as provided by Chapter 2001, Government Code, the
 4-3     employee may file a petition for judicial review contesting the
 4-4     finding of an act of misconduct.
 4-5           (c)  Judicial review of the order:
 4-6                 (1)  is instituted by filing a petition as provided by
 4-7     Subchapter G, Chapter 2001, Government Code; and
 4-8                 (2)  is under the substantial evidence rule.
 4-9           (d)  If the court sustains the finding of the occurrence of
4-10     an act of misconduct, the department shall keep the incident listed
4-11     in the registry.  If the court does not sustain the finding of the
4-12     occurrence of an act of misconduct, the court shall order the
4-13     department to remove the incident from the registry.
4-14      Sec. 253.006.  INFORMAL PROCEEDINGS.  The department by rule shall
4-15     adopt procedures governing informal proceedings held in compliance
4-16     with Section 2001.056, Government Code.
4-17           Sec. 253.007.  EMPLOYEE MISCONDUCT REGISTRY.  (a)  If an
4-18     employee abuses, neglects, or exploits a consumer of a facility or
4-19     misappropriates a consumer's property, the department shall make a
4-20     record of the employee's name, the employee's address, the
4-21     employee's social security number, the name of the facility, the
4-22     address of the facility, the date of the act of misconduct, and a
4-23     description of the act of misconduct.
4-24           (b)  The department shall make the registry available to the
4-25     public.
4-26           Sec. 253.008.  VERIFICATION OF EMPLOYABILITY.  (a)  Before a
4-27     facility may employ a person who will have direct working contact
 5-1     with a consumer, the facility shall search the registry to
 5-2     determine whether the person is designated in the registry as
 5-3     having abused, neglected, or exploited a consumer of a facility.
 5-4           (b)  A facility may not employ a person who is listed in the
 5-5     registry as having abused, neglected, or exploited a consumer of a
 5-6     facility.
 5-7           SECTION 2.  This Act takes effect September 1, 1999, and
 5-8     applies only to an act of misconduct that occurs on or after that
 5-9     date.
5-10           SECTION 3.  This Act takes effect only if House Bill No. 224
5-11     or Senate Bill No. 20, Acts of the 76th Legislature, Regular
5-12     Session, 1999, is enacted and becomes law. If House Bill No. 224 or
5-13     Senate Bill No. 20 does not become law, this Act does not take
5-14     effect.
5-15           SECTION 4.  The importance of this legislation and the
5-16     crowded condition of the calendars in both houses create an
5-17     emergency and an imperative public necessity that the
5-18     constitutional rule requiring bills to be read on three several
5-19     days in each house be suspended, and this rule is hereby suspended.