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.