1-1 AN ACT
1-2 relating to certain employees of nursing homes and related
1-3 institutions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 242.0371, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 242.0371. NOTICE OF CERTAIN EMPLOYMENT POLICIES [DRUG
1-8 TESTING POLICY]. (a) An institution licensed under this chapter
1-9 shall prepare [provide to the following persons] a written
1-10 statement describing the institution's policy for:
1-11 (1) the drug testing of employees who have direct
1-12 contact with residents; and
1-13 (2) the conducting of criminal history record checks
1-14 of employees and applicants for employment in accordance with
1-15 Chapter 250.
1-16 (b) The institution shall provide the statement to:
1-17 (1) each person applying for services from the
1-18 institution or the person's next of kin or guardian; and
1-19 (2) any person requesting the information.
1-20 SECTION 2. Subchapter B, Chapter 242, Health and Safety
1-21 Code, is amended by adding Section 242.050 to read as follows:
1-22 Sec. 242.050. DRUG TESTING OF EMPLOYEES. (a) An institution
1-23 may establish a drug testing policy for employees of the
1-24 institution. An institution that establishes a drug testing policy
2-1 under this subsection may adopt the model drug testing policy
2-2 adopted by the board or may use another drug testing policy.
2-3 (b) The board by rule shall adopt a model drug testing
2-4 policy for use by institutions. The model drug testing policy must
2-5 be designed to ensure the safety of residents through appropriate
2-6 drug testing and to protect the rights of employees. The model
2-7 drug testing policy must:
2-8 (1) require at least one scheduled drug test each year
2-9 for each employee of an institution that has direct contact with a
2-10 resident in the institution; and
2-11 (2) authorize random, unannounced drug testing for
2-12 employees described by Subdivision (1).
2-13 SECTION 3. Section 250.002, Health and Safety Code, is
2-14 amended to read as follows:
2-15 Sec. 250.002. INFORMATION OBTAINED BY FACILITY, REGULATORY
2-16 AGENCY, OR PRIVATE AGENCY. (a) A facility, a regulatory agency,
2-17 or a private agency on behalf of a facility is entitled to obtain
2-18 from the Department of Public Safety of the State of Texas criminal
2-19 history record information maintained by the Department of Public
2-20 Safety that relates to a person who is:
2-21 (1) an applicant for employment at a facility other
2-22 than a facility licensed under Chapter 142;
2-23 (2) [licensed, certified, or under contract with the
2-24 agency, as specified by Section 250.001(3), or who is] an employee
2-25 of a [that] facility other than a facility licensed under Chapter
2-26 142; or
2-27 (3) an applicant for employment at or an employee of a
3-1 facility licensed under Chapter 142[, and] whose employment duties
3-2 would or do involve direct contact with a consumer in the [a]
3-3 facility.
3-4 (b) A facility may:
3-5 (1) pay a private agency to obtain criminal history
3-6 record information for an applicant or employee described by
3-7 Subsection (a) directly from the Department of Public Safety of the
3-8 State of Texas; or
3-9 (2) obtain the information directly from the
3-10 Department of Public Safety [from the regulatory agency that
3-11 obtains the information from the Department of Public Safety of the
3-12 State of Texas regarding that facility].
3-13 (c) The [regulatory agency or] private agency[, as
3-14 appropriate,] shall forward criminal history record information
3-15 received under this section to the facility requesting the
3-16 information.
3-17 (d) A regulatory agency may adopt rules relating to the
3-18 processing of information requested or obtained under this chapter.
3-19 SECTION 4. Section 250.003, Health and Safety Code, is
3-20 amended to read as follows:
3-21 Sec. 250.003. VERIFICATION OF EMPLOYABILITY; DISCHARGE.
3-22 (a) A facility may not employ a person [in a position the duties
3-23 of which involve direct contact with a consumer in the facility] if
3-24 the facility determines, as a result of a criminal history check,
3-25 that a person has been convicted of an offense listed in this
3-26 chapter that bars employment or that a conviction is a
3-27 contraindication to employment with the consumers the facility
4-1 serves, and if the applicant is a nurse aide, until the facility
4-2 further verifies that the applicant is listed in the nurse aide
4-3 registry and verifies that the applicant is not designated in the
4-4 registry as having a finding entered into the registry concerning
4-5 abuse, neglect, or mistreatment of a consumer of a facility, or
4-6 misappropriation of a consumer's property. A person licensed under
4-7 another law of this state is exempt from the requirements of this
4-8 chapter.
4-9 (b) The facility may not employ an applicant covered by
4-10 Subsection (a), except that in an emergency requiring immediate
4-11 employment, a facility may hire on a temporary or interim basis a
4-12 person not listed in the registry pending the results of a criminal
4-13 conviction check, which must be requested within 72 hours of
4-14 employment. [The request shall be mailed, sent by telephonic
4-15 facsimile machine, sent by electronic means, or otherwise forwarded
4-16 to the facility's regulatory agency by the facility or a private
4-17 agency working with the facility, or to the Department of Public
4-18 Safety of the State of Texas by a private agency working with the
4-19 facility.]
4-20 (c) A facility shall immediately discharge any employee [in
4-21 a position the duties of which involve direct contact with a
4-22 consumer in the facility] who is designated in the nurse aide
4-23 registry or the employee misconduct registry established under
4-24 Chapter 253 as having committed an act of abuse, neglect, or
4-25 mistreatment of a consumer of a facility, or misappropriation of a
4-26 consumer's property, or whose criminal history check reveals
4-27 conviction of a crime that bars employment or that the facility
5-1 determines is a contraindication to employment as provided by this
5-2 chapter.
5-3 SECTION 5. Section 250.004(a), Health and Safety Code, is
5-4 amended to read as follows:
5-5 (a) Identifying information of an employee [in direct
5-6 contact with a consumer] in a covered facility shall be submitted
5-7 electronically, on disk, or on a typewritten form to the Department
5-8 of Public Safety to obtain the person's criminal conviction record
5-9 when the person applies for employment and at other times as the
5-10 facility may determine appropriate. In this subsection,
5-11 "identifying information" includes:
5-12 (1) the complete name, race, and sex of the employee;
5-13 (2) any known identifying number of the employee,
5-14 including social security number, driver's license number, or state
5-15 identification number; and
5-16 (3) the employee's date of birth.
5-17 SECTION 6. Section 250.006, Health and Safety Code, is
5-18 amended to read as follows:
5-19 Sec. 250.006. CONVICTIONS BARRING EMPLOYMENT. (a) A person
5-20 for whom the facility is entitled to obtain criminal history record
5-21 information may not be employed in a facility if the person has
5-22 been convicted of an offense listed in this subsection [section may
5-23 not be employed in a position the duties of which involve direct
5-24 contact with a consumer in a facility]:
5-25 (1) an offense under Chapter 19, Penal Code (criminal
5-26 homicide);
5-27 (2) an offense under Chapter 20, Penal Code
6-1 (kidnapping and unlawful restraint [false imprisonment]);
6-2 (3) an offense under Section 21.11, Penal Code
6-3 (indecency with a child);
6-4 (4) an offense under Section 22.011, Penal Code
6-5 (sexual assault);
6-6 (5) an offense under Section 22.02, Penal Code
6-7 (aggravated assault);
6-8 (6) an offense under Section 22.04, Penal Code (injury
6-9 to a child, elderly individual, or disabled individual);
6-10 (7) an offense under Section 22.041, Penal Code
6-11 (abandoning or endangering child);
6-12 (8) an offense under Section 22.08, Penal Code (aiding
6-13 suicide);
6-14 (9) an offense under Section 25.031, Penal Code
6-15 (agreement to abduct from custody);
6-16 (10) an offense under Section 25.08, Penal Code (sale
6-17 or purchase of a child);
6-18 (11) an offense under Section 28.02, Penal Code
6-19 (arson);
6-20 (12) an offense under Section 29.02, Penal Code
6-21 (robbery); [or]
6-22 (13) an offense under Section 29.03, Penal Code
6-23 (aggravated robbery); or
6-24 (14) a conviction under the laws of another state,
6-25 federal law, or the Uniform Code of Military Justice for an offense
6-26 containing elements that are substantially similar to the elements
6-27 of an offense listed under Subdivisions (1)-(13).
7-1 (b) A person convicted of an offense under Chapter 31, Penal
7-2 Code, that is punishable as a felony may not be employed in a
7-3 position the duties of which involve direct contact with a consumer
7-4 in a facility before the fifth anniversary of the date of the
7-5 conviction.
7-6 SECTION 7. (a) This Act takes effect September 1, 2001.
7-7 (b) Each institution shall begin providing the notice
7-8 required by Section 242.0371, Health and Safety Code, as amended by
7-9 this Act, not later than January 1, 2002.
7-10 (c) Not later than December 1, 2001, the Texas Board of
7-11 Human Services shall adopt the model drug testing policy required
7-12 by Section 242.050, Health and Safety Code, as added by this Act.
7-13 (d) Section 250.006(b), Health and Safety Code, as added by
7-14 this Act, applies only to a person first employed by a facility on
7-15 or after the effective date of this Act. A person employed by a
7-16 facility before the effective date of this Act is governed by the
7-17 law as it existed before the effective date of this Act, and that
7-18 law is continued in effect for that purpose.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1418 was passed by the House on May
11, 2001, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 1418 on May 24, 2001, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1418 was passed by the Senate, with
amendments, on May 17, 2001, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor