By: Moncrief S.B. No. 1245
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to reporting certain acts of misconduct by and background
1-3 checks of certain employees and applicants for employment of
1-4 certain health care agencies and facilities.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 48, Human Resources Code, is amended by
1-7 adding Subchapter I to read as follows:
1-8 SUBCHAPTER I. EMPLOYEE MISCONDUCT REGISTRY
1-9 Sec. 48.401. DEFINITIONS. In this subchapter:
1-10 (1) "Agency" means an entity licensed under Chapter
1-11 142, Health and Safety Code.
1-12 (2) "Employee" means a person who:
1-13 (A) works for an agency;
1-14 (B) provides personal care services, active
1-15 treatment, or any other personal services to an individual
1-16 receiving agency services; and
1-17 (C) is not licensed by the state to perform the
1-18 services the person performs for the agency.
1-19 (3) "Employee misconduct registry" means the employee
1-20 misconduct registry established under Chapter 253, Health and
1-21 Safety Code.
1-22 (4) "Executive director" means the executive director
1-23 of the Department of Protective and Regulatory Services.
1-24 (5) "Reportable conduct" includes:
1-25 (A) abuse or neglect that causes or may cause
2-1 death or harm to an individual receiving agency services;
2-2 (B) sexual abuse of an individual receiving
2-3 agency services;
2-4 (C) financial exploitation of an individual
2-5 receiving agency services in an amount of $25 or more; and
2-6 (D) emotional, verbal, or psychological abuse
2-7 that causes harm to an individual receiving agency services.
2-8 Sec. 48.402. RULES RELATING TO REPORTABLE CONDUCT. The
2-9 department may adopt rules to further define reportable conduct.
2-10 Sec. 48.403. FINDING. After an investigation and following
2-11 the procedures of this subchapter, if the department confirms or
2-12 validates the occurrence of reportable conduct by an employee, the
2-13 department shall forward the finding to the Texas Department of
2-14 Human Services to record the reportable conduct in the employee
2-15 misconduct registry under Section 253.007, Health and Safety Code.
2-16 Sec. 48.404. NOTICE OF FINDING. (a) The department shall
2-17 give written notice of the department's findings under Section
2-18 48.403 to the employee. The notice must include:
2-19 (1) a brief summary of the department's findings;
2-20 (2) a statement of the employee's right to a hearing
2-21 on the department's findings; and
2-22 (3) a statement notifying the employee that if the
2-23 employee fails to timely respond to the notice, the finding that
2-24 the employee committed the reportable conduct will be recorded in
2-25 the employee misconduct registry under Section 253.007, Health and
2-26 Safety Code.
3-1 (b) Not later than the 30th day after the date the notice is
3-2 received, the employee notified may accept the finding of the
3-3 department made under Section 48.403 or may make a written request
3-4 for a hearing on that finding.
3-5 (c) If the employee notified of the violation accepts the
3-6 finding of the department or fails to timely respond to the notice,
3-7 the executive director or the executive director's designee shall
3-8 issue an order approving the finding and ordering that the
3-9 department's findings be forwarded to the Texas Department of Human
3-10 Services to be recorded in the employee misconduct registry under
3-11 Section 253.007, Health and Safety Code.
3-12 Sec. 48.405. HEARING; ORDER. (a) If the employee requests
3-13 a hearing, the department shall:
3-14 (1) set a hearing;
3-15 (2) give written notice of the hearing to the
3-16 employee; and
3-17 (3) designate a hearings examiner to conduct the
3-18 hearing.
3-19 (b) The hearings examiner shall make findings of fact and
3-20 conclusions of law and shall promptly issue to the executive
3-21 director or the executive director's designee a proposal for
3-22 decision as to the occurrence of the reportable conduct.
3-23 (c) Based on the findings of fact and conclusions of law and
3-24 the recommendations of the hearings examiner, the executive
3-25 director or the executive director's designee by order may find
3-26 that the reportable conduct has occurred. If the executive
4-1 director or the executive director's designee finds that reportable
4-2 conduct has occurred, the executive director or the executive
4-3 director's designee shall issue an order approving the finding.
4-4 Sec. 48.406. NOTICE; JUDICIAL REVIEW. (a) The department
4-5 shall give notice of the order under Section 48.405 to the employee
4-6 alleged to have committed the reportable conduct. The notice must
4-7 include:
4-8 (1) separate statements of the findings of fact and
4-9 conclusions of law;
4-10 (2) a statement of the right of the employee to
4-11 judicial review of the order; and
4-12 (3) a statement that the reportable conduct will be
4-13 recorded in the employee misconduct registry under Section 253.007,
4-14 Health and Safety Code, if:
4-15 (A) the employee does not request judicial
4-16 review of the finding; or
4-17 (B) the finding is sustained by the court.
4-18 (b) Not later than the 30th day after the date the decision
4-19 becomes final as provided by Chapter 2001, Government Code, the
4-20 employee may file a petition for judicial review contesting the
4-21 finding of the reportable conduct. If the employee does not
4-22 request judicial review of the finding, the department shall send a
4-23 record of the department's findings to the Texas Department of
4-24 Human Services to record in the employee misconduct registry under
4-25 Section 253.007, Health and Safety Code.
4-26 (c) Judicial review of the order:
5-1 (1) is instituted by filing a petition as provided by
5-2 Subchapter G, Chapter 2001, Government Code; and
5-3 (2) is under the substantial evidence rule.
5-4 (d) If the court sustains the finding of the occurrence of
5-5 the reportable conduct, the department shall forward the finding of
5-6 reportable conduct to the Texas Department of Human Services to
5-7 record the reportable conduct in the employee misconduct registry
5-8 under Section 253.007, Health and Safety Code.
5-9 Sec. 48.407. INFORMAL PROCEEDINGS. The department by rule
5-10 shall adopt procedures governing informal proceedings held in
5-11 compliance with Section 2001.056, Government Code.
5-12 Sec. 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT
5-13 REGISTRY. (a) When the department forwards a finding of
5-14 reportable conduct to the Texas Department of Human Services for
5-15 recording in the employee misconduct registry, the department shall
5-16 provide the employee's name, the employee's address, the employee's
5-17 social security number, if available, the name of the agency, the
5-18 address of the agency, the date the reportable conduct occurred,
5-19 and a description of the reportable conduct.
5-20 (b) If a governmental agency of another state or the federal
5-21 government finds that an employee has committed an act that
5-22 constitutes reportable conduct, the department may send to the
5-23 Texas Department of Human Services, for recording in the employee
5-24 misconduct registry, the employee's name, the employee's address,
5-25 the employee's social security number, if available, the name of
5-26 the agency, the address of the agency, the date of the act, and a
6-1 description of the act.
6-2 SECTION 2. Section 250.002, Health and Safety Code, is
6-3 amended to read as follows:
6-4 Sec. 250.002. INFORMATION OBTAINED BY FACILITY, REGULATORY
6-5 AGENCY, OR PRIVATE AGENCY. (a) A facility, a regulatory agency,
6-6 or a private agency on behalf of a facility is entitled to obtain
6-7 from the Department of Public Safety of the State of Texas criminal
6-8 history record information maintained by the Department of Public
6-9 Safety that relates to a person who is:
6-10 (1) an applicant for employment at a facility other
6-11 than a facility licensed under Chapter 142;
6-12 (2) [licensed, certified, or under contract with the
6-13 agency, as specified by Section 250.001(3), or who is] an employee
6-14 of a [that] facility other than a facility licensed under Chapter
6-15 142; or
6-16 (3) an applicant for employment at or an employee of a
6-17 facility licensed under Chapter 142[, and] whose employment duties
6-18 would or do involve direct contact with a consumer in the [a]
6-19 facility.
6-20 (b) A facility may:
6-21 (1) pay a private agency to obtain criminal history
6-22 record information for an applicant or employee described by
6-23 Subsection (a) directly from the Department of Public Safety of the
6-24 State of Texas; or
6-25 (2) obtain the information directly from the
6-26 Department of Public Safety [from the regulatory agency that
7-1 obtains the information from the Department of Public Safety of the
7-2 State of Texas regarding that facility].
7-3 (c) The [regulatory agency or] private agency[, as
7-4 appropriate,] shall forward criminal history record information
7-5 received under this section to the facility requesting the
7-6 information.
7-7 (d) A regulatory agency may adopt rules relating to the
7-8 processing of information requested or obtained under this chapter.
7-9 SECTION 3. Section 250.003, Health and Safety Code, is
7-10 amended to read as follows:
7-11 Sec. 250.003. VERIFICATION OF EMPLOYABILITY; DISCHARGE.
7-12 (a) A facility may not employ a person [in a position the duties
7-13 of which involve direct contact with a consumer in the facility] if
7-14 the facility determines, as a result of a criminal history check,
7-15 that a person has been convicted of an offense listed in this
7-16 chapter that bars employment or that a conviction is a
7-17 contraindication to employment with the consumers the facility
7-18 serves, and if the applicant is a nurse aide, until the facility
7-19 further verifies that the applicant is listed in the nurse aide
7-20 registry and verifies that the applicant is not designated in the
7-21 registry as having a finding entered into the registry concerning
7-22 abuse, neglect, or mistreatment of a consumer of a facility, or
7-23 misappropriation of a consumer's property. A person licensed under
7-24 another law of this state is exempt from the requirements of this
7-25 chapter.
7-26 (b) The facility may not employ an applicant covered by
8-1 Subsection (a), except that in an emergency requiring immediate
8-2 employment, a facility may hire on a temporary or interim basis a
8-3 person not listed in the registry pending the results of a criminal
8-4 conviction check, which must be requested within 72 hours of
8-5 employment. [The request shall be mailed, sent by telephonic
8-6 facsimile machine, sent by electronic means, or otherwise forwarded
8-7 to the facility's regulatory agency by the facility or a private
8-8 agency working with the facility, or to the Department of Public
8-9 Safety of the State of Texas by a private agency working with the
8-10 facility.]
8-11 (c) A facility shall immediately discharge any employee [in
8-12 a position the duties of which involve direct contact with a
8-13 consumer in the facility] who is designated in the nurse aide
8-14 registry or the employee misconduct registry established under
8-15 Chapter 253 as having committed an act of abuse, neglect, or
8-16 mistreatment of a consumer of a facility, or misappropriation of a
8-17 consumer's property, or whose criminal history check reveals
8-18 conviction of a crime that bars employment or that the facility
8-19 determines is a contraindication to employment as provided by this
8-20 chapter.
8-21 SECTION 4. Subsection (a), Section 250.004, Health and
8-22 Safety Code, is amended to read as follows:
8-23 (a) Identifying information of an employee [in direct
8-24 contact with a consumer] in a covered facility shall be submitted
8-25 electronically, on disk, or on a typewritten form to the Department
8-26 of Public Safety to obtain the person's criminal conviction record
9-1 when the person applies for employment and at other times as the
9-2 facility may determine appropriate. In this subsection,
9-3 "identifying information" includes:
9-4 (1) the complete name, race, and sex of the employee;
9-5 (2) any known identifying number of the employee,
9-6 including social security number, driver's license number, or state
9-7 identification number; and
9-8 (3) the employee's date of birth.
9-9 SECTION 5. Section 250.006, Health and Safety Code, is
9-10 amended to read as follows:
9-11 Sec. 250.006. CONVICTIONS BARRING EMPLOYMENT. A person for
9-12 whom the facility is entitled to obtain criminal history record
9-13 information may not be employed in a facility if the person has
9-14 been convicted of an offense listed in this section [may not be
9-15 employed in a position the duties of which involve direct contact
9-16 with a consumer in a facility]:
9-17 (1) an offense under Chapter 19, Penal Code (criminal
9-18 homicide);
9-19 (2) an offense under Chapter 20, Penal Code
9-20 (kidnapping and false imprisonment);
9-21 (3) an offense under Section 21.11, Penal Code
9-22 (indecency with a child);
9-23 (4) an offense under Section 22.011, Penal Code
9-24 (sexual assault);
9-25 (5) an offense under Section 22.02, Penal Code
9-26 (aggravated assault);
10-1 (6) an offense under Section 22.04, Penal Code (injury
10-2 to a child, elderly individual, or disabled individual);
10-3 (7) an offense under Section 22.041, Penal Code
10-4 (abandoning or endangering child);
10-5 (8) an offense under Section 22.08, Penal Code (aiding
10-6 suicide);
10-7 (9) an offense under Section 25.031, Penal Code
10-8 (agreement to abduct from custody);
10-9 (10) an offense under Section 25.08, Penal Code (sale
10-10 or purchase of a child);
10-11 (11) an offense under Section 28.02, Penal Code
10-12 (arson);
10-13 (12) an offense under Section 29.02, Penal Code
10-14 (robbery); [or]
10-15 (13) an offense under Section 29.03, Penal Code
10-16 (aggravated robbery); or
10-17 (14) a conviction under the laws of another state,
10-18 federal law, or the Uniform Code of Military Justice for an offense
10-19 containing elements that are substantially similar to the elements
10-20 of an offense listed under Subdivisions (1)-(13).
10-21 SECTION 6. Section 253.001, Health and Safety Code, is
10-22 amended by adding Subdivision (5) to read as follows:
10-23 (5) "Reportable conduct" includes:
10-24 (A) abuse or neglect that causes or may cause
10-25 death or harm to a resident or consumer of a facility;
10-26 (B) sexual abuse of a resident or consumer of a
11-1 facility;
11-2 (C) financial exploitation of a resident or
11-3 consumer of a facility in an amount of $25 or more; and
11-4 (D) emotional, verbal, or psychological abuse
11-5 that causes harm to a resident or consumer of a facility.
11-6 SECTION 7. Section 253.002, Health and Safety Code, is
11-7 amended to read as follows:
11-8 Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the
11-9 department receives a report that an employee of a facility
11-10 committed reportable conduct [has abused, neglected, or exploited a
11-11 resident or consumer of a facility or misappropriated a resident's
11-12 or consumer's property], the department shall investigate the
11-13 report to determine whether the employee has committed the
11-14 reportable conduct [act of abuse, neglect, exploitation, or
11-15 misappropriation].
11-16 SECTION 8. Subsections (a) and (c), Section 253.003, Health
11-17 and Safety Code, are amended to read as follows:
11-18 (a) If, after an investigation, the department determines
11-19 that the reportable conduct occurred [employee abused, neglected,
11-20 or exploited a resident or consumer of the facility or
11-21 misappropriated a resident's or consumer's property], the
11-22 department shall give written notice of the department's findings.
11-23 The notice must include:
11-24 (1) a brief summary of the department's findings; and
11-25 (2) a statement of the person's right to a hearing on
11-26 the occurrence of the reportable conduct [misconduct].
12-1 (c) If the employee notified of the violation accepts the
12-2 determination of the department or fails to timely respond to the
12-3 notice, the commissioner or the commissioner's designee shall issue
12-4 an order approving the determination and ordering that the
12-5 reportable conduct [incident of misconduct] be recorded in the
12-6 registry under Section 253.007.
12-7 SECTION 9. Subsections (b) and (c), Section 253.004, Health
12-8 and Safety Code, are amended to read as follows:
12-9 (b) The hearings examiner shall make findings of fact and
12-10 conclusions of law and shall promptly issue to the commissioner or
12-11 the commissioner's designee a proposal for decision as to the
12-12 occurrence of the reportable conduct [violation].
12-13 (c) Based on the findings of fact and conclusions of law and
12-14 the recommendations of the hearings examiner, the commissioner or
12-15 the commissioner's designee by order may find that the reportable
12-16 conduct [an act of misconduct] has occurred. If the commissioner
12-17 or the commissioner's designee finds that the reportable conduct
12-18 [an act of misconduct] has occurred, the commissioner or the
12-19 commissioner's designee shall issue an order approving the
12-20 determination.
12-21 SECTION 10. Subsections (a), (b), and (d), Section 253.005,
12-22 Health and Safety Code, are amended to read as follows:
12-23 (a) The department shall give notice of the order under
12-24 Section 253.004 to the employee alleged to have committed the
12-25 reportable conduct [act of misconduct]. The notice must include:
12-26 (1) separate statements of the findings of fact and
13-1 conclusions of law;
13-2 (2) a statement of the right of the employee to
13-3 judicial review of the order; and
13-4 (3) a statement that the reportable conduct [incident
13-5 of misconduct] will be recorded in the registry under Section
13-6 253.007 if:
13-7 (A) the employee does not request judicial
13-8 review of the determination; or
13-9 (B) the determination is sustained by the court.
13-10 (b) Not later than the 30th day after the date on which the
13-11 decision becomes final as provided by Chapter 2001, Government
13-12 Code, the employee may file a petition for judicial review
13-13 contesting the finding of the reportable conduct [an act of
13-14 misconduct]. If the employee does not request judicial review of
13-15 the determination, the department shall record the reportable
13-16 conduct [incident of misconduct] in the registry under Section
13-17 253.007.
13-18 (d) If the court sustains the finding of the occurrence of
13-19 the reportable conduct [an act of misconduct], the department shall
13-20 record the reportable conduct [incident of misconduct] in the
13-21 registry under Section 253.007.
13-22 SECTION 11. Subsections (a) and (b), Section 253.007, Health
13-23 and Safety Code, are amended to read as follows:
13-24 (a) If an employee commits reportable conduct [abuses,
13-25 neglects, or exploits a resident or consumer of a facility or
13-26 misappropriates a resident's or consumer's property], the
14-1 department shall make a record of the employee's name, the
14-2 employee's address, the employee's social security number, the name
14-3 of the facility, the address of the facility, the date [of] the
14-4 reportable conduct occurred [act of misconduct], and a description
14-5 of the reportable conduct [act of misconduct].
14-6 (b) If an agency of another state or the federal government
14-7 finds that an employee has committed an act that constitutes
14-8 reportable conduct [abused, neglected, or exploited a resident or
14-9 consumer of a facility or misappropriated a resident's or
14-10 consumer's property], the department may make a record in the
14-11 employee misconduct registry of the employee's name, the employee's
14-12 address, the employee's social security number, the name of the
14-13 facility, the address of the facility, the date of the act [of
14-14 misconduct], and a description of the act [of misconduct].
14-15 SECTION 12. Section 253.008, Health and Safety Code, is
14-16 amended to read as follows:
14-17 Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
14-18 facility or an agency licensed under Chapter 142 may hire an
14-19 employee, the facility or agency shall search the employee
14-20 misconduct registry under this chapter and the nurse aide registry
14-21 maintained under the Omnibus Budget Reconciliation Act of 1987
14-22 (Pub. L. No. 100-203) to determine whether the person is designated
14-23 in either registry as having abused, neglected, or exploited a
14-24 resident or consumer of a facility or an individual receiving
14-25 services from an agency licensed under Chapter 142.
14-26 (b) A facility or agency licensed under Chapter 142 may not
15-1 employ a person who is listed in either registry as having abused,
15-2 neglected, or exploited a resident or consumer of a facility or an
15-3 individual receiving services from an agency licensed under Chapter
15-4 142.
15-5 SECTION 13. Subsection (a), Section 253.009, Health and
15-6 Safety Code, is amended to read as follows:
15-7 (a) Each facility or each agency licensed under Chapter 142
15-8 shall notify its employees in a manner prescribed by the
15-9 department:
15-10 (1) about the employee misconduct registry; and
15-11 (2) that an employee may not be employed if the
15-12 employee is listed in the registry.
15-13 SECTION 14. Chapter 253, Health and Safety Code, is amended
15-14 by adding Sections 253.0075 and 253.010 to read as follows:
15-15 Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY
15-16 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. On receipt of a
15-17 finding of reportable conduct by the Department of Protective and
15-18 Regulatory Services under Subchapter I, Chapter 48, Human Resources
15-19 Code, the department shall record the information in the employee
15-20 misconduct registry.
15-21 Sec. 253.010. REMOVAL FROM REGISTRY. The department may
15-22 remove a person from the employee misconduct registry if, after
15-23 receiving a written request from the person, the department
15-24 determines that the person does not meet the requirements for
15-25 inclusion in the employee misconduct registry.
15-26 SECTION 15. (a) This Act takes effect immediately if it
16-1 receives a vote of two-thirds of all the members elected to each
16-2 house, as provided by Section 39, Article III, Texas Constitution.
16-3 If this Act does not receive the vote necessary for immediate
16-4 effect, this Act takes effect September 1, 2001.
16-5 (b) Subchapter I, Chapter 48, Human Resources Code, as added
16-6 by this Act, applies only to reportable conduct that occurs on or
16-7 after the effective date of this Act.