1-1 By: Bernsen S.B. No. 1678
1-2 (In the Senate - Filed March 12, 1999; March 15, 1999, read
1-3 first time and referred to Committee on Human Services;
1-4 April 16, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; April 16, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1678 By: Bernsen
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of social workers and social work
1-11 associates; providing civil and administrative penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 50.017, Human Resources Code, is amended
1-14 to read as follows:
1-15 Sec. 50.017. SOCIAL WORK ASSOCIATE. The board shall
1-16 consider the following as minimum evidence that an applicant is
1-17 qualified to be examined for a license as a social work associate:
1-18 (1) a baccalaureate degree in the behavioral or social
1-19 sciences or in a related field from an accredited educational
1-20 institution; and
1-21 (2) [the additional] satisfactory completion of a
1-22 reasonable specified number of years of actual and active social
1-23 work experience approved by the board[; or]
1-24 [(2) an associate of arts degree in the behavioral
1-25 sciences as determined by the board from an accredited educational
1-26 institution and the additional satisfactory completion of a
1-27 reasonable specified number of years of actual and active social
1-28 work experience approved by the board].
1-29 SECTION 2. Chapter 50, Human Resources Code, is amended by
1-30 adding Sections 50.0225 through 50.0228 to read as follows:
1-31 Sec. 50.0225. SUBPOENA. (a) The board may request and, if
1-32 necessary, compel by subpoena the attendance of witnesses for
1-33 examination under oath and the production for inspection and
1-34 copying of books, accounts, records, papers, correspondence,
1-35 documents, and other evidence relevant to the investigation of an
1-36 alleged violation of this chapter.
1-37 (b) If a person fails to comply with a subpoena issued under
1-38 this section, the board, acting through the attorney general, may
1-39 file suit to enforce the subpoena in a district court in Travis
1-40 County or in the county in which a hearing conducted by the board
1-41 may be held. On finding that good cause exists for the issuance of
1-42 the subpoena, the court shall order compliance with the
1-43 requirements of the subpoena. Failure to obey the order of the
1-44 court may be punished by the court as contempt.
1-45 Sec. 50.0226. REPORT OF VIOLATION. In a written, signed
1-46 report to the appropriate licensing board, agency, or facility, a
1-47 person licensed under this chapter may report an incident that the
1-48 person has reasonable cause to believe has exposed a client to
1-49 substantial risk of harm, including:
1-50 (1) a failure to provide care that conforms to the
1-51 minimum standards of acceptable and prevailing professional
1-52 practice;
1-53 (2) illegal billing practices; or
1-54 (3) falsification of records.
1-55 Sec. 50.0227. REPORTING IMMUNITY. A person who, without
1-56 malice, makes a report authorized, or reasonably believed to be
1-57 authorized, under Section 50.0226:
1-58 (1) is immune from civil liability; and
1-59 (2) may not be subjected by the person's employer to
1-60 other retaliatory action as a result of making the report.
1-61 Sec. 50.0228. CAUSE OF ACTION FOR RETALIATION. (a) A
1-62 person named as a defendant in a civil action or subjected by the
1-63 person's employer to other retaliatory action as a result of filing
1-64 a report authorized, or reasonably believed to be authorized, under
2-1 Section 50.0226 may file a counterclaim in the pending action or
2-2 prove a cause of action in a subsequent suit to recover defense
2-3 costs, including reasonable attorney's fees and actual and punitive
2-4 damages, if the suit or retaliatory action is determined to be
2-5 frivolous, unreasonable, or taken in bad faith.
2-6 (b) A person may not suspend or terminate the employment of,
2-7 or otherwise discipline or discriminate against, a person who makes
2-8 a report, without malice, under Section 50.0226.
2-9 (c) A person who makes a report under Section 50.0226 has a
2-10 cause of action against a person who violates Subsection (b) and
2-11 may recover:
2-12 (1) the greater of:
2-13 (A) actual damages, including damages for mental
2-14 anguish even if no other injury is shown; or
2-15 (B) $1,000;
2-16 (2) exemplary damages;
2-17 (3) court costs; and
2-18 (4) reasonable attorney's fees.
2-19 (d) In addition to the amount recovered under Subsection
2-20 (c), a person whose employment is suspended or terminated in
2-21 violation of this section is entitled to:
2-22 (1) reinstatement in the employee's former position or
2-23 severance pay in an amount equal to three months of the employee's
2-24 most recent salary; and
2-25 (2) compensation for wages lost during the period of
2-26 suspension or termination.
2-27 (e) A person who brings an action under this section has the
2-28 burden of proof. It is a rebuttable presumption that the person's
2-29 employment was suspended or terminated for making a report under
2-30 Section 50.0226 if:
2-31 (1) the person was suspended or terminated within 60
2-32 days after the date the report was made; and
2-33 (2) the person to whom the report that is the subject
2-34 of the cause of action was made or the court determines that the
2-35 report was:
2-36 (A) authorized under Section 50.0226; and
2-37 (B) made without malice.
2-38 (f) An action under this section may be brought in a
2-39 district court of the county in which:
2-40 (1) the plaintiff resides;
2-41 (2) the plaintiff was employed by the defendant; or
2-42 (3) the defendant conducts business.
2-43 SECTION 3. Subsection (e), Section 50.023, Human Resources
2-44 Code, is amended to read as follows:
2-45 (e) If a person's license or certificate or order of
2-46 recognition has been expired for one year or longer, the person may
2-47 not renew the license or order of recognition. The person may
2-48 obtain a new license or order of recognition by submitting to
2-49 reexamination[, if an examination was originally required, and
2-50 complying with the requirements and procedures for obtaining an
2-51 original license or certificate or order of recognition]. However,
2-52 the board may renew without reexamination an expired license or
2-53 certificate or order of recognition of a person who was licensed in
2-54 this state, moved to another state, and is currently licensed or
2-55 certified and has been in practice in the other state for the two
2-56 years preceding application. The person must pay to the department
2-57 a fee that is equal to the examination fee for the license or order
2-58 of recognition.
2-59 SECTION 4. Section 50.028, Human Resources Code, is amended
2-60 to read as follows:
2-61 Sec. 50.028. CIVIL PENALTY [VIOLATIONS]. A person who
2-62 violates this chapter or a rule or order of the board pertaining to
2-63 the practice of social work is subject to a civil penalty of not
2-64 less than $50 nor more than $500 for each day of violation.
2-65 SECTION 5. The heading to Section 50.029, Human Resources
2-66 Code, is amended to read as follows:
2-67 Sec. 50.029. SUIT FOR CIVIL PENALTY OR INJUNCTIVE RELIEF.
2-68 SECTION 6. Chapter 50, Human Resources Code, is amended by
2-69 adding Section 50.0295 to read as follows:
3-1 Sec. 50.0295. ADMINISTRATIVE PENALTY. (a) The board may
3-2 impose an administrative penalty on a person licensed under this
3-3 chapter who violates this chapter or a rule or order adopted under
3-4 this chapter.
3-5 (b) The amount of the penalty may not be less than $50 or
3-6 exceed $500 for each violation. Each day a violation continues or
3-7 occurs is a separate violation for the purpose of imposing a
3-8 penalty.
3-9 (c) The amount shall be based on:
3-10 (1) the seriousness of the violation, including the
3-11 nature, circumstances, extent, and gravity of the violation;
3-12 (2) the economic harm caused by the violation;
3-13 (3) the history of previous violations;
3-14 (4) the amount necessary to deter a future violation;
3-15 (5) efforts to correct the violation; and
3-16 (6) any other matter that justice may require.
3-17 (d) If the executive director determines that a violation
3-18 occurred, the director may issue to the board a report stating:
3-19 (1) the facts on which the determination is based; and
3-20 (2) the director's recommendation on the imposition of
3-21 the penalty, including a recommendation on the amount of the
3-22 penalty.
3-23 (e) Within 14 days after the date the report is issued, the
3-24 executive director shall give written notice of the report to the
3-25 person.
3-26 (f) The notice must:
3-27 (1) include a brief summary of the alleged violation;
3-28 (2) state the amount of the recommended penalty; and
3-29 (3) inform the person of the person's right to a
3-30 hearing on the occurrence of the violation, the amount of the
3-31 penalty, or both.
3-32 (g) Within 10 days after the date the person receives the
3-33 notice, the person in writing may:
3-34 (1) accept the determination and recommended penalty
3-35 of the executive director; or
3-36 (2) make a request for a hearing on the occurrence of
3-37 the violation, the amount of the penalty, or both.
3-38 (h) If the person accepts the determination and recommended
3-39 penalty of the executive director, the board by order shall approve
3-40 the determination and impose the recommended penalty.
3-41 (i) If the person requests a hearing or fails to respond in
3-42 a timely manner to the notice, the executive director shall set a
3-43 hearing and give written notice of the hearing to the person. An
3-44 administrative law judge of the State Office of Administrative
3-45 Hearings shall hold the hearing.
3-46 (j) The administrative law judge shall make findings of fact
3-47 and conclusions of law and promptly issue to the board a proposal
3-48 for a decision about the occurrence of the violation and the amount
3-49 of a proposed penalty.
3-50 (k) Based on the findings of fact, conclusions of law, and
3-51 proposal for decision, the board by order may:
3-52 (1) find that a violation occurred and impose a
3-53 penalty; or
3-54 (2) find that a violation did not occur.
3-55 (l) The notice of the board's order given to the person must
3-56 include a statement of the right of the person to judicial review
3-57 of the order.
3-58 (m) Within 30 days after the date the board's order becomes
3-59 final, the person shall:
3-60 (1) pay the penalty; or
3-61 (2) file a petition for judicial review contesting the
3-62 occurrence of the violation, the amount of the penalty, or both.
3-63 (n) Within the 30-day period prescribed by Subsection (m), a
3-64 person who files a petition for judicial review may:
3-65 (1) stay enforcement of the penalty by:
3-66 (A) paying the penalty to the court for
3-67 placement in an escrow account; or
3-68 (B) giving the court a supersedeas bond approved
3-69 by the court that:
4-1 (i) is for the amount of the penalty; and
4-2 (ii) is effective until all judicial
4-3 review of the board's order is final; or
4-4 (2) request the court to stay enforcement of the
4-5 penalty by:
4-6 (A) filing with the court a sworn affidavit of
4-7 the person stating that the person is financially unable to pay the
4-8 penalty and is financially unable to give the supersedeas bond; and
4-9 (B) giving a copy of the affidavit to the
4-10 executive director by certified mail.
4-11 (o) If the executive director receives a copy of an
4-12 affidavit under Subsection (n)(2), the director may file with the
4-13 court, within five days after the date the copy is received, a
4-14 contest to the affidavit. The court shall hold a hearing on the
4-15 facts alleged in the affidavit as soon as practicable and shall
4-16 stay the enforcement of the penalty on finding that the alleged
4-17 facts are true. The person who files an affidavit has the burden
4-18 of proving that the person is financially unable to pay the penalty
4-19 and to give a supersedeas bond.
4-20 (p) If the person does not pay the penalty and the
4-21 enforcement of the penalty is not stayed, the penalty may be
4-22 collected.
4-23 (q) The attorney general may sue to collect the penalty.
4-24 (r) If the court sustains the finding that a violation
4-25 occurred, the court may uphold or reduce the amount of the penalty
4-26 and order the person to pay the full or reduced amount of the
4-27 penalty.
4-28 (s) If the court does not sustain the finding that a
4-29 violation occurred, the court shall order that a penalty is not
4-30 owed.
4-31 (t) If the person paid the penalty and if the amount of the
4-32 penalty is reduced or the penalty is not upheld by the court, the
4-33 court shall order, when the court's judgment becomes final, that
4-34 the appropriate amount plus accrued interest be remitted to the
4-35 person.
4-36 (u) The interest accrues at the rate charged on loans to
4-37 depository institutions by the New York Federal Reserve Bank.
4-38 (v) The interest shall be paid for the period beginning on
4-39 the date the penalty is paid and ending on the date the penalty is
4-40 remitted.
4-41 (w) If the person gave a supersedeas bond and the penalty is
4-42 not upheld by the court, the court shall order, when the court's
4-43 judgment becomes final, the release of the bond.
4-44 (x) If the person gave a supersedeas bond and the amount of
4-45 the penalty is reduced, the court shall order the release of the
4-46 bond after the person pays the reduced amount.
4-47 (y) A proceeding under this section is a contested case
4-48 under Chapter 2001, Government Code.
4-49 SECTION 7. (a) This Act takes effect September 1, 1999.
4-50 (b) The change in law made by Section 50.017, and Subsection
4-51 (e), Section 50.023, Human Resources Code, as amended by this Act,
4-52 applies only to a person who files an application for a license or
4-53 order of recognition on or after the effective date of this Act. A
4-54 person who filed an application for a license or order of
4-55 recognition before the effective date of this Act is governed by
4-56 the law in effect on the date the application was filed, and the
4-57 former law is continued in effect for that purpose.
4-58 (c) The change in law made by Sections 50.0226-50.0227, and
4-59 50.0228, Human Resources Code, as added by this Act, applies only
4-60 to a report made on or after the effective date of this Act. A
4-61 report made before the effective date of this Act is governed by
4-62 the law in effect on the date the report was made, and the former
4-63 law is continued in effect for that purpose.
4-64 (d) The change in law made by Section 50.0295, Human
4-65 Resources Code, as added by this Act, applies only to a violation
4-66 committed on or after the effective date of this Act. For purposes
4-67 of this subsection, a violation is committed before the effective
4-68 date of this Act if any element of the violation occurs before that
4-69 date. A violation committed before the effective date of this Act
5-1 is covered by the law in effect when the violation was committed,
5-2 and the former law is continued in effect for that purpose.
5-3 SECTION 8. The importance of this legislation and the
5-4 crowded condition of the calendars in both houses create an
5-5 emergency and an imperative public necessity that the
5-6 constitutional rule requiring bills to be read on three several
5-7 days in each house be suspended, and this rule is hereby suspended.
5-8 * * * * *