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 * * * * *