1-1 By: Zaffirini S.B. No. 967
1-2 (In the Senate - Filed March 8, 1999; March 9, 1999, read
1-3 first time and referred to Committee on Human Services;
1-4 April 8, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 4, Nays 0; April 8, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 967 By: Zaffirini
A BILL TO BE ENTITLED
1-8 AN ACT
1-9 relating to creating a registry for acts of misconduct of certain
1-10 employees of facilities licensed by, or certain entities that
1-11 contract with, the Texas Department of Human Services.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
1-14 amended by adding Chapter 253 to read as follows:
1-15 CHAPTER 253. EMPLOYEE MISCONDUCT REGISTRY
1-16 Sec. 253.001. DEFINITIONS. In this chapter:
1-17 (1) "Commissioner" means the commissioner of human
1-18 services.
1-19 (2) "Department" means the Texas Department of Human
1-20 Services.
1-21 (3) "Employee" means a person who:
1-22 (A) works at a facility;
1-23 (B) is an individual who provides personal care
1-24 services, active treatment, or any other personal services to a
1-25 resident or consumer of the facility;
1-26 (C) is not licensed by an agency of the state to
1-27 perform the services the employee performs at the facility; and
1-28 (D) is not a nurse aide employed by a nursing
1-29 facility.
1-30 (4) "Facility" means:
1-31 (A) a facility licensed by the department; or
1-32 (B) an adult foster care provider that contracts
1-33 with the department.
1-34 Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the
1-35 department receives a report that an employee of a facility has
1-36 abused, neglected, or exploited a resident or consumer of a
1-37 facility or misappropriated a resident's or consumer's property,
1-38 the department shall investigate the report to determine whether
1-39 the employee has committed the act of abuse, neglect, exploitation,
1-40 or misappropriation.
1-41 Sec. 253.003. DETERMINATION; NOTICE. (a) If, after an
1-42 investigation, the department determines that the employee abused,
1-43 neglected, or exploited a resident or consumer of the facility or
1-44 misappropriated a resident's or consumer's property, the department
1-45 shall give written notice of the department's findings. The notice
1-46 must include:
1-47 (1) a brief summary of the department's findings; and
1-48 (2) a statement of the person's right to a hearing on
1-49 the occurrence of the misconduct.
1-50 (b) Not later than the 30th day after the date on which the
1-51 notice is received, the employee notified may accept the
1-52 determination of the department made under this section or may make
1-53 a written request for a hearing on that determination.
1-54 (c) If the employee notified of the violation accepts the
1-55 determination of the department or fails to timely respond to the
1-56 notice, the commissioner or the commissioner's designee shall issue
1-57 an order approving the determination and ordering that the incident
1-58 of misconduct be recorded in the registry under Section 253.007.
1-59 Sec. 253.004. HEARING; ORDER. (a) If the employee requests
1-60 a hearing, the department shall:
1-61 (1) set a hearing;
1-62 (2) give written notice of the hearing to the
1-63 employee; and
1-64 (3) designate a hearings examiner to conduct the
2-1 hearing.
2-2 (b) The hearings examiner shall make findings of fact and
2-3 conclusions of law and shall promptly issue to the commissioner or
2-4 the commissioner's designee a proposal for decision as to the
2-5 occurrence of the violation.
2-6 (c) Based on the findings of fact and conclusions of law and
2-7 the recommendations of the hearings examiner, the commissioner or
2-8 the commissioner's designee by order may find that an act of
2-9 misconduct has occurred. If the commissioner or the commissioner's
2-10 designee finds that an act of misconduct has occurred, the
2-11 commissioner or the commissioner's designee shall issue an order
2-12 approving the determination and ordering that the incident of
2-13 misconduct be recorded in the registry under Section 253.007.
2-14 Sec. 253.005. NOTICE; JUDICIAL REVIEW. (a) The department
2-15 shall give notice of the order under Section 253.004 to the
2-16 employee alleged to have committed the act of misconduct. The
2-17 notice must include:
2-18 (1) separate statements of the findings of fact and
2-19 conclusions of law; and
2-20 (2) a statement of the right of the employee to
2-21 judicial review of the order.
2-22 (b) Not later than the 30th day after the date on which the
2-23 decision becomes final as provided by Chapter 2001, Government
2-24 Code, the employee may file a petition for judicial review
2-25 contesting the finding of an act of misconduct.
2-26 (c) Judicial review of the order:
2-27 (1) is instituted by filing a petition as provided by
2-28 Subchapter G, Chapter 2001, Government Code; and
2-29 (2) is under the substantial evidence rule.
2-30 (d) If the court sustains the finding of the occurrence of
2-31 an act of misconduct, the department shall keep the incident listed
2-32 in the registry. If the court does not sustain the finding of the
2-33 occurrence of an act of misconduct, the court shall order the
2-34 department to remove the incident from the registry.
2-35 Sec. 253.006. INFORMAL PROCEEDINGS. The department by rule
2-36 shall adopt procedures governing informal proceedings held in
2-37 compliance with Section 2001.056, Government Code.
2-38 Sec. 253.007. EMPLOYEE MISCONDUCT REGISTRY. (a) If an
2-39 employee abuses, neglects, or exploits a resident or consumer of a
2-40 facility or misappropriates a resident's or consumer's property,
2-41 the department shall make a record of the employee's name, the
2-42 employee's address, the employee's social security number, the name
2-43 of the facility, the address of the facility, the date of the act
2-44 of misconduct, and a description of the act of misconduct.
2-45 (b) If an agency of another state or the federal government
2-46 finds that an employee has abused, neglected, or exploited a
2-47 resident or consumer of a facility or misappropriated a resident's
2-48 or consumer's property, the department may make a record in the
2-49 employee misconduct registry of the employee's name, the employee's
2-50 address, the employee's social security number, the name of the
2-51 facility, the address of the facility, the date of the act of
2-52 misconduct, and a description of the act of misconduct.
2-53 (c) The department shall make the registry available to the
2-54 public.
2-55 Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
2-56 facility may hire an employee, the facility shall search the
2-57 employee misconduct registry under this chapter and the nurse aide
2-58 registry maintained under the Omnibus Budget Reconciliation Act of
2-59 1987 (Pub. L. No. 100-203) to determine whether the person is
2-60 designated in either registry as having abused, neglected, or
2-61 exploited a resident or consumer of a facility.
2-62 (b) A facility may not employ a person who is listed in
2-63 either registry as having abused, neglected, or exploited a
2-64 resident or consumer of a facility.
2-65 SECTION 2. This Act takes effect September 1, 1999, and
2-66 applies only to an act of misconduct that occurs on or after that
2-67 date.
2-68 SECTION 3. The importance of this legislation and the
2-69 crowded condition of the calendars in both houses create an
3-1 emergency and an imperative public necessity that the
3-2 constitutional rule requiring bills to be read on three several
3-3 days in each house be suspended, and this rule is hereby suspended.
3-4 * * * * *