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                                  * * * * *