By: Bernsen S.B. No. 1678
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of social workers and social work
1-2 associates; providing civil and administrative penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 50.017, Human Resources Code, is amended
1-5 to read as follows:
1-6 Sec. 50.017. SOCIAL WORK ASSOCIATE. The board shall
1-7 consider the following as minimum evidence that an applicant is
1-8 qualified to be examined for a license as a social work associate:
1-9 (1) a baccalaureate degree in the behavioral or social
1-10 sciences or in a related field from an accredited educational
1-11 institution; and
1-12 (2) [the additional] satisfactory completion of a
1-13 reasonable specified number of years of actual and active social
1-14 work experience approved by the board[; or]
1-15 [(2) an associate of arts degree in the behavioral
1-16 sciences as determined by the board from an accredited educational
1-17 institution and the additional satisfactory completion of a
1-18 reasonable specified number of years of actual and active social
1-19 work experience approved by the board].
1-20 SECTION 2. Chapter 50, Human Resources Code, is amended by
1-21 adding Sections 50.0225, 50.0226, and 50.0227 to read as follows:
1-22 Sec. 50.0225. REPORT OF VIOLATION. In a written, signed
1-23 report to the appropriate licensing board, agency, or facility, a
1-24 person licensed under this chapter may report an incident that the
2-1 person has reasonable cause to believe has exposed a client to
2-2 substantial risk of harm, including:
2-3 (1) a failure to provide care that conforms to the
2-4 minimum standards of acceptable and prevailing professional
2-5 practice;
2-6 (2) illegal billing practices; or
2-7 (3) falsification of records.
2-8 Sec. 50.0226. REPORTING IMMUNITY. A person who, without
2-9 malice, makes a report authorized, or reasonably believed to be
2-10 authorized, under Section 50.0225:
2-11 (1) is immune from civil liability; and
2-12 (2) may not be subjected by the person's employer to
2-13 other retaliatory action as a result of making the report.
2-14 Sec. 50.0227. CAUSE OF ACTION FOR RETALIATION. (a) A
2-15 person named as a defendant in a civil action or subjected by the
2-16 person's employer to other retaliatory action as a result of filing
2-17 a report authorized, or reasonably believed to be authorized, under
2-18 Section 50.0225 may file a counterclaim in the pending action or
2-19 prove a cause of action in a subsequent suit to recover defense
2-20 costs, including reasonable attorney's fees and actual and punitive
2-21 damages, if the suit or retaliatory action is determined to be
2-22 frivolous, unreasonable, or taken in bad faith.
2-23 (b) A person may not suspend or terminate the employment of,
2-24 or otherwise discipline or discriminate against, a person who makes
2-25 a report, without malice, under Section 50.0225.
2-26 (c) A person who makes a report under Section 50.0225 has a
3-1 cause of action against a person who violates Subsection (b) and
3-2 may recover:
3-3 (1) the greater of:
3-4 (A) actual damages, including damages for mental
3-5 anguish even if no other injury is shown; or
3-6 (B) $1,000;
3-7 (2) exemplary damages;
3-8 (3) court costs; and
3-9 (4) reasonable attorney's fees.
3-10 (d) In addition to the amount recovered under Subsection
3-11 (c), a person whose employment is suspended or terminated in
3-12 violation of this section is entitled to:
3-13 (1) reinstatement in the employee's former position or
3-14 severance pay in an amount equal to three months of the employee's
3-15 most recent salary; and
3-16 (2) compensation for wages lost during the period of
3-17 suspension or termination.
3-18 (e) A person who brings an action under this section has the
3-19 burden of proof. It is a rebuttable presumption that the person's
3-20 employment was suspended or terminated for making a report under
3-21 Section 50.0225 if:
3-22 (1) the person was suspended or terminated within 60
3-23 days after the date the report was made; and
3-24 (2) the person to whom the report that is the subject
3-25 of the cause of action was made or the court determines that the
3-26 report was:
4-1 (A) authorized under Section 50.0225; and
4-2 (B) made without malice.
4-3 (f) An action under this section may be brought in a
4-4 district court of the county in which:
4-5 (1) the plaintiff resides;
4-6 (2) the plaintiff was employed by the defendant; or
4-7 (3) the defendant conducts business.
4-8 SECTION 3. Subsection (e), Section 50.023, Human Resources
4-9 Code, is amended to read as follows:
4-10 (e) If a person's license or certificate or order of
4-11 recognition has been expired for one year or longer, the person may
4-12 not renew the license or order of recognition. The person may
4-13 obtain a new license or order of recognition by submitting to
4-14 reexamination[, if an examination was originally required, and
4-15 complying with the requirements and procedures for obtaining an
4-16 original license or certificate or order of recognition]. However,
4-17 the board may renew without reexamination an expired license or
4-18 certificate or order of recognition of a person who was licensed in
4-19 this state, moved to another state, and is currently licensed or
4-20 certified and has been in practice in the other state for the two
4-21 years preceding application. The person must pay to the department
4-22 a fee that is equal to the examination fee for the license or order
4-23 of recognition.
4-24 SECTION 4. Section 50.028, Human Resources Code, is amended
4-25 to read as follows:
4-26 Sec. 50.028. CIVIL PENALTY [VIOLATIONS]. A person who
5-1 violates this chapter or a rule or order of the board pertaining to
5-2 the practice of social work is subject to a civil penalty of not
5-3 less than $50 nor more than $500 for each day of violation.
5-4 SECTION 5. The heading to Section 50.029, Human Resources
5-5 Code, is amended to read as follows:
5-6 Sec. 50.029. SUIT FOR CIVIL PENALTY OR INJUNCTIVE RELIEF.
5-7 SECTION 6. Chapter 50, Human Resources Code, is amended by
5-8 adding Section 50.0295 to read as follows:
5-9 Sec. 50.0295. ADMINISTRATIVE PENALTY. (a) The board may
5-10 impose an administrative penalty on a person licensed under this
5-11 chapter who violates this chapter or a rule or order adopted under
5-12 this chapter.
5-13 (b) The amount of the penalty may not be less than $50 or
5-14 exceed $500 for each violation. Each day a violation continues or
5-15 occurs is a separate violation for the purpose of imposing a
5-16 penalty.
5-17 (c) The amount shall be based on:
5-18 (1) the seriousness of the violation, including the
5-19 nature, circumstances, extent, and gravity of the violation;
5-20 (2) the economic harm caused by the violation;
5-21 (3) the history of previous violations;
5-22 (4) the amount necessary to deter a future violation;
5-23 (5) efforts to correct the violation; and
5-24 (6) any other matter that justice may require.
5-25 (d) If the executive director determines that a violation
5-26 occurred, the director may issue to the board a report stating:
6-1 (1) the facts on which the determination is based; and
6-2 (2) the director's recommendation on the imposition of
6-3 the penalty, including a recommendation on the amount of the
6-4 penalty.
6-5 (e) Within 14 days after the date the report is issued, the
6-6 executive director shall give written notice of the report to the
6-7 person.
6-8 (f) The notice must:
6-9 (1) include a brief summary of the alleged violation;
6-10 (2) state the amount of the recommended penalty; and
6-11 (3) inform the person of the person's right to a
6-12 hearing on the occurrence of the violation, the amount of the
6-13 penalty, or both.
6-14 (g) Within 10 days after the date the person receives the
6-15 notice, the person in writing may:
6-16 (1) accept the determination and recommended penalty
6-17 of the executive director; or
6-18 (2) make a request for a hearing on the occurrence of
6-19 the violation, the amount of the penalty, or both.
6-20 (h) If the person accepts the determination and recommended
6-21 penalty of the executive director, the board by order shall approve
6-22 the determination and impose the recommended penalty.
6-23 (i) If the person requests a hearing or fails to respond in
6-24 a timely manner to the notice, the executive director shall set a
6-25 hearing and give written notice of the hearing to the person. An
6-26 administrative law judge of the State Office of Administrative
7-1 Hearings shall hold the hearing.
7-2 (j) The administrative law judge shall make findings of fact
7-3 and conclusions of law and promptly issue to the board a proposal
7-4 for a decision about the occurrence of the violation and the amount
7-5 of a proposed penalty.
7-6 (k) Based on the findings of fact, conclusions of law, and
7-7 proposal for decision, the board by order may:
7-8 (1) find that a violation occurred and impose a
7-9 penalty; or
7-10 (2) find that a violation did not occur.
7-11 (l) The notice of the board's order given to the person must
7-12 include a statement of the right of the person to judicial review
7-13 of the order.
7-14 (m) Within 30 days after the date the board's order becomes
7-15 final, the person shall:
7-16 (1) pay the penalty; or
7-17 (2) file a petition for judicial review contesting the
7-18 occurrence of the violation, the amount of the penalty, or both.
7-19 (n) Within the 30-day period prescribed by Subsection (m), a
7-20 person who files a petition for judicial review may:
7-21 (1) stay enforcement of the penalty by:
7-22 (A) paying the penalty to the court for
7-23 placement in an escrow account; or
7-24 (B) giving the court a supersedeas bond approved
7-25 by the court that:
7-26 (i) is for the amount of the penalty; and
8-1 (ii) is effective until all judicial
8-2 review of the board's order is final; or
8-3 (2) request the court to stay enforcement of the
8-4 penalty by:
8-5 (A) filing with the court a sworn affidavit of
8-6 the person stating that the person is financially unable to pay the
8-7 penalty and is financially unable to give the supersedeas bond; and
8-8 (B) giving a copy of the affidavit to the
8-9 executive director by certified mail.
8-10 (o) If the executive director receives a copy of an
8-11 affidavit under Subsection (n)(2), the director may file with the
8-12 court, within five days after the date the copy is received, a
8-13 contest to the affidavit. The court shall hold a hearing on the
8-14 facts alleged in the affidavit as soon as practicable and shall
8-15 stay the enforcement of the penalty on finding that the alleged
8-16 facts are true. The person who files an affidavit has the burden
8-17 of proving that the person is financially unable to pay the penalty
8-18 and to give a supersedeas bond.
8-19 (p) If the person does not pay the penalty and the
8-20 enforcement of the penalty is not stayed, the penalty may be
8-21 collected.
8-22 (q) The attorney general may sue to collect the penalty.
8-23 (r) If the court sustains the finding that a violation
8-24 occurred, the court may uphold or reduce the amount of the penalty
8-25 and order the person to pay the full or reduced amount of the
8-26 penalty.
9-1 (s) If the court does not sustain the finding that a
9-2 violation occurred, the court shall order that a penalty is not
9-3 owed.
9-4 (t) If the person paid the penalty and if the amount of the
9-5 penalty is reduced or the penalty is not upheld by the court, the
9-6 court shall order, when the court's judgment becomes final, that
9-7 the appropriate amount plus accrued interest be remitted to the
9-8 person.
9-9 (u) The interest accrues at the rate charged on loans to
9-10 depository institutions by the New York Federal Reserve Bank.
9-11 (v) The interest shall be paid for the period beginning on
9-12 the date the penalty is paid and ending on the date the penalty is
9-13 remitted.
9-14 (w) If the person gave a supersedeas bond and the penalty is
9-15 not upheld by the court, the court shall order, when the court's
9-16 judgment becomes final, the release of the bond.
9-17 (x) If the person gave a supersedeas bond and the amount of
9-18 the penalty is reduced, the court shall order the release of the
9-19 bond after the person pays the reduced amount.
9-20 (y) A proceeding under this section is a contested case
9-21 under Chapter 2001, Government Code.
9-22 SECTION 7. (a) This Act takes effect September 1, 1999.
9-23 (b) The change in law made by Section 50.017, and Subsection
9-24 (e), Section 50.023, Human Resources Code, as amended by this Act,
9-25 applies only to a person who files an application for a license or
9-26 order of recognition on or after the effective date of this Act. A
10-1 person who filed an application for a license or order of
10-2 recognition before the effective date of this Act is governed by
10-3 the law in effect on the date the application was filed, and the
10-4 former law is continued in effect for that purpose.
10-5 (c) The change in law made by Sections 50.0225, 50.0226, and
10-6 50.0227, Human Resources Code, as added by this Act, applies only
10-7 to a report made on or after the effective date of this Act. A
10-8 report made before the effective date of this Act is governed by
10-9 the law in effect on the date the report was made, and the former
10-10 law is continued in effect for that purpose.
10-11 (d) The change in law made by Section 50.0295, Human
10-12 Resources Code, as added by this Act, applies only to a violation
10-13 committed on or after the effective date of this Act. For purposes
10-14 of this subsection, a violation is committed before the effective
10-15 date of this Act if any element of the violation occurs before that
10-16 date. A violation committed before the effective date of this Act
10-17 is covered by the law in effect when the violation was committed,
10-18 and the former law is continued in effect for that purpose.
10-19 SECTION 8. The importance of this legislation and the
10-20 crowded condition of the calendars in both houses create an
10-21 emergency and an imperative public necessity that the
10-22 constitutional rule requiring bills to be read on three several
10-23 days in each house be suspended, and this rule is hereby suspended.