77R15192 MCK-D
By Moncrief S.B. No. 1245
Substitute the following for S.B. No. 1245:
By Naishtat C.S.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:
2-1 (A) abuse or neglect that causes or may cause
2-2 death or harm to an individual receiving agency services;
2-3 (B) sexual abuse of an individual receiving
2-4 agency services;
2-5 (C) financial exploitation of an individual
2-6 receiving agency services in an amount of $25 or more; and
2-7 (D) emotional, verbal, or psychological abuse
2-8 that causes harm to an individual receiving agency services.
2-9 Sec. 48.402. RULES RELATING TO REPORTABLE CONDUCT. The
2-10 department may adopt rules to further define reportable conduct.
2-11 Sec. 48.403. FINDING. After an investigation and following
2-12 the procedures of this subchapter, if the department confirms or
2-13 validates the occurrence of reportable conduct by an employee, the
2-14 department shall forward the finding to the Texas Department of
2-15 Human Services to record the reportable conduct in the employee
2-16 misconduct registry under Section 253.007, Health and Safety Code.
2-17 Sec. 48.404. NOTICE OF FINDING. (a) The department shall
2-18 give written notice of the department's findings under Section
2-19 48.403 to the employee. The notice must include:
2-20 (1) a brief summary of the department's findings;
2-21 (2) a statement of the employee's right to a hearing
2-22 on the department's findings; and
2-23 (3) a statement notifying the employee that if the
2-24 employee fails to timely respond to the notice, the finding that
2-25 the employee committed the reportable conduct will be recorded in
2-26 the employee misconduct registry under Section 253.007, Health and
2-27 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
3-27 director or the executive director's designee finds that reportable
4-1 conduct has occurred, the executive director or the executive
4-2 director's designee shall issue an order approving the finding.
4-3 Sec. 48.406. NOTICE; JUDICIAL REVIEW. (a) The department
4-4 shall give notice of the order under Section 48.405 to the employee
4-5 alleged to have committed the reportable conduct. The notice must
4-6 include:
4-7 (1) separate statements of the findings of fact and
4-8 conclusions of law;
4-9 (2) a statement of the right of the employee to
4-10 judicial review of the order; and
4-11 (3) a statement that the reportable conduct will be
4-12 recorded in the employee misconduct registry under Section 253.007,
4-13 Health and Safety Code, if:
4-14 (A) the employee does not request judicial
4-15 review of the finding; or
4-16 (B) the finding is sustained by the court.
4-17 (b) Not later than the 30th day after the date the decision
4-18 becomes final as provided by Chapter 2001, Government Code, the
4-19 employee may file a petition for judicial review contesting the
4-20 finding of the reportable conduct. If the employee does not
4-21 request judicial review of the finding, the department shall send a
4-22 record of the department's findings to the Texas Department of
4-23 Human Services to record in the employee misconduct registry under
4-24 Section 253.007, Health and Safety Code.
4-25 (c) Judicial review of the order:
4-26 (1) is instituted by filing a petition as provided by
4-27 Subchapter G, Chapter 2001, Government Code; and
5-1 (2) is under the substantial evidence rule.
5-2 (d) If the court sustains the finding of the occurrence of
5-3 the reportable conduct, the department shall forward the finding of
5-4 reportable conduct to the Texas Department of Human Services to
5-5 record the reportable conduct in the employee misconduct registry
5-6 under Section 253.007, Health and Safety Code.
5-7 Sec. 48.407. INFORMAL PROCEEDINGS. The department by rule
5-8 shall adopt procedures governing informal proceedings held in
5-9 compliance with Section 2001.056, Government Code.
5-10 Sec. 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT
5-11 REGISTRY. (a) When the department forwards a finding of
5-12 reportable conduct to the Texas Department of Human Services for
5-13 recording in the employee misconduct registry, the department shall
5-14 provide the employee's name, the employee's address, the employee's
5-15 social security number, if available, the name of the agency, the
5-16 address of the agency, the date the reportable conduct occurred,
5-17 and a description of the reportable conduct.
5-18 (b) If a governmental agency of another state or the federal
5-19 government finds that an employee has committed an act that
5-20 constitutes reportable conduct, the department may send to the
5-21 Texas Department of Human Services, for recording in the employee
5-22 misconduct registry, the employee's name, the employee's address,
5-23 the employee's social security number, if available, the name of
5-24 the agency, the address of the agency, the date of the act, and a
5-25 description of the act.
5-26 SECTION 2. Section 250.002, Health and Safety Code, is
5-27 amended to read as follows:
6-1 Sec. 250.002. INFORMATION OBTAINED BY FACILITY, REGULATORY
6-2 AGENCY, OR PRIVATE AGENCY. (a) A facility, a regulatory agency,
6-3 or a private agency on behalf of a facility is entitled to obtain
6-4 from the Department of Public Safety of the State of Texas criminal
6-5 history record information maintained by the Department of Public
6-6 Safety that relates to a person who is:
6-7 (1) an applicant for employment at a facility other
6-8 than a facility licensed under Chapter 142;
6-9 (2) [licensed, certified, or under contract with the
6-10 agency, as specified by Section 250.001(3), or who is] an employee
6-11 of a [that] facility other than a facility licensed under Chapter
6-12 142; or
6-13 (3) an applicant for employment at or an employee of a
6-14 facility licensed under Chapter 142[, and] whose employment duties
6-15 would or do involve direct contact with a consumer in the [a]
6-16 facility.
6-17 (b) A facility may:
6-18 (1) pay a private agency to obtain criminal history
6-19 record information for an applicant or employee described by
6-20 Subsection (a) directly from the Department of Public Safety of the
6-21 State of Texas; or
6-22 (2) obtain the information directly from the
6-23 Department of Public Safety [from the regulatory agency that
6-24 obtains the information from the Department of Public Safety of the
6-25 State of Texas regarding that facility].
6-26 (c) The [regulatory agency or] private agency[, as
6-27 appropriate,] shall forward criminal history record information
7-1 received under this section to the facility requesting the
7-2 information.
7-3 (d) A regulatory agency may adopt rules relating to the
7-4 processing of information requested or obtained under this chapter.
7-5 SECTION 3. Section 250.003, Health and Safety Code, is
7-6 amended to read as follows:
7-7 Sec. 250.003. VERIFICATION OF EMPLOYABILITY; DISCHARGE.
7-8 (a) A facility may not employ a person [in a position the duties
7-9 of which involve direct contact with a consumer in the facility] if
7-10 the facility determines, as a result of a criminal history check,
7-11 that a person has been convicted of an offense listed in this
7-12 chapter that bars employment or that a conviction is a
7-13 contraindication to employment with the consumers the facility
7-14 serves, and if the applicant is a nurse aide, until the facility
7-15 further verifies that the applicant is listed in the nurse aide
7-16 registry and verifies that the applicant is not designated in the
7-17 registry as having a finding entered into the registry concerning
7-18 abuse, neglect, or mistreatment of a consumer of a facility, or
7-19 misappropriation of a consumer's property. A person licensed under
7-20 another law of this state is exempt from the requirements of this
7-21 chapter.
7-22 (b) The facility may not employ an applicant covered by
7-23 Subsection (a), except that in an emergency requiring immediate
7-24 employment, a facility may hire on a temporary or interim basis a
7-25 person not listed in the registry pending the results of a criminal
7-26 conviction check, which must be requested within 72 hours of
7-27 employment. [The request shall be mailed, sent by telephonic
8-1 facsimile machine, sent by electronic means, or otherwise forwarded
8-2 to the facility's regulatory agency by the facility or a private
8-3 agency working with the facility, or to the Department of Public
8-4 Safety of the State of Texas by a private agency working with the
8-5 facility.]
8-6 (c) A facility shall immediately discharge any employee [in
8-7 a position the duties of which involve direct contact with a
8-8 consumer in the facility] who is designated in the nurse aide
8-9 registry or the employee misconduct registry established under
8-10 Chapter 253 as having committed an act of abuse, neglect, or
8-11 mistreatment of a consumer of a facility, or misappropriation of a
8-12 consumer's property, or whose criminal history check reveals
8-13 conviction of a crime that bars employment or that the facility
8-14 determines is a contraindication to employment as provided by this
8-15 chapter.
8-16 SECTION 4. Subsection (a), Section 250.004, Health and
8-17 Safety Code, is amended to read as follows:
8-18 (a) Identifying information of an employee [in direct
8-19 contact with a consumer] in a covered facility shall be submitted
8-20 electronically, on disk, or on a typewritten form to the Department
8-21 of Public Safety to obtain the person's criminal conviction record
8-22 when the person applies for employment and at other times as the
8-23 facility may determine appropriate. In this subsection,
8-24 "identifying information" includes:
8-25 (1) the complete name, race, and sex of the employee;
8-26 (2) any known identifying number of the employee,
8-27 including social security number, driver's license number, or state
9-1 identification number; and
9-2 (3) the employee's date of birth.
9-3 SECTION 5. Section 250.006, Health and Safety Code, is
9-4 amended to read as follows:
9-5 Sec. 250.006. CONVICTIONS BARRING EMPLOYMENT. A person for
9-6 whom the facility is entitled to obtain criminal history record
9-7 information may not be employed in a facility if the person has
9-8 been convicted of an offense listed in this section [may not be
9-9 employed in a position the duties of which involve direct contact
9-10 with a consumer in a facility]:
9-11 (1) an offense under Chapter 19, Penal Code (criminal
9-12 homicide);
9-13 (2) an offense under Chapter 20, Penal Code
9-14 (kidnapping and false imprisonment);
9-15 (3) an offense under Section 21.11, Penal Code
9-16 (indecency with a child);
9-17 (4) an offense under Section 22.011, Penal Code
9-18 (sexual assault);
9-19 (5) an offense under Section 22.02, Penal Code
9-20 (aggravated assault);
9-21 (6) an offense under Section 22.04, Penal Code (injury
9-22 to a child, elderly individual, or disabled individual);
9-23 (7) an offense under Section 22.041, Penal Code
9-24 (abandoning or endangering child);
9-25 (8) an offense under Section 22.08, Penal Code (aiding
9-26 suicide);
9-27 (9) an offense under Section 25.031, Penal Code
10-1 (agreement to abduct from custody);
10-2 (10) an offense under Section 25.08, Penal Code (sale
10-3 or purchase of a child);
10-4 (11) an offense under Section 28.02, Penal Code
10-5 (arson);
10-6 (12) an offense under Section 29.02, Penal Code
10-7 (robbery); [or]
10-8 (13) an offense under Section 29.03, Penal Code
10-9 (aggravated robbery); or
10-10 (14) a conviction under the laws of another state,
10-11 federal law, or the Uniform Code of Military Justice for an offense
10-12 containing elements that are substantially similar to the elements
10-13 of an offense listed under Subdivisions (1)-(13).
10-14 SECTION 6. Section 253.001, Health and Safety Code, is
10-15 amended by adding Subdivision (5) to read as follows:
10-16 (5) "Reportable conduct" includes:
10-17 (A) abuse or neglect that causes or may cause
10-18 death or harm to a resident or consumer of a facility;
10-19 (B) sexual abuse of a resident or consumer of a
10-20 facility;
10-21 (C) financial exploitation of a resident or
10-22 consumer of a facility in an amount of $25 or more; and
10-23 (D) emotional, verbal, or psychological abuse
10-24 that causes harm to a resident or consumer of a facility.
10-25 SECTION 7. Section 253.002, Health and Safety Code, is
10-26 amended to read as follows:
10-27 Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the
11-1 department receives a report that an employee of a facility
11-2 committed reportable conduct [has abused, neglected, or exploited a
11-3 resident or consumer of a facility or misappropriated a resident's
11-4 or consumer's property], the department shall investigate the
11-5 report to determine whether the employee has committed the
11-6 reportable conduct [act of abuse, neglect, exploitation, or
11-7 misappropriation].
11-8 SECTION 8. Subsections (a) and (c), Section 253.003, Health
11-9 and Safety Code, are amended to read as follows:
11-10 (a) If, after an investigation, the department determines
11-11 that the reportable conduct occurred [employee abused, neglected,
11-12 or exploited a resident or consumer of the facility or
11-13 misappropriated a resident's or consumer's property], the
11-14 department shall give written notice of the department's findings.
11-15 The notice must include:
11-16 (1) a brief summary of the department's findings; and
11-17 (2) a statement of the person's right to a hearing on
11-18 the occurrence of the reportable conduct [misconduct].
11-19 (c) If the employee notified of the violation accepts the
11-20 determination of the department or fails to timely respond to the
11-21 notice, the commissioner or the commissioner's designee shall issue
11-22 an order approving the determination and ordering that the
11-23 reportable conduct [incident of misconduct] be recorded in the
11-24 registry under Section 253.007.
11-25 SECTION 9. Subsections (b) and (c), Section 253.004, Health
11-26 and Safety Code, are amended to read as follows:
11-27 (b) The hearings examiner shall make findings of fact and
12-1 conclusions of law and shall promptly issue to the commissioner or
12-2 the commissioner's designee a proposal for decision as to the
12-3 occurrence of the reportable conduct [violation].
12-4 (c) Based on the findings of fact and conclusions of law and
12-5 the recommendations of the hearings examiner, the commissioner or
12-6 the commissioner's designee by order may find that the reportable
12-7 conduct [an act of misconduct] has occurred. If the commissioner
12-8 or the commissioner's designee finds that the reportable conduct
12-9 [an act of misconduct] has occurred, the commissioner or the
12-10 commissioner's designee shall issue an order approving the
12-11 determination.
12-12 SECTION 10. Subsections (a), (b), and (d), Section 253.005,
12-13 Health and Safety Code, are amended to read as follows:
12-14 (a) The department shall give notice of the order under
12-15 Section 253.004 to the employee alleged to have committed the
12-16 reportable conduct [act of misconduct]. The notice must include:
12-17 (1) separate statements of the findings of fact and
12-18 conclusions of law;
12-19 (2) a statement of the right of the employee to
12-20 judicial review of the order; and
12-21 (3) a statement that the reportable conduct [incident
12-22 of misconduct] will be recorded in the registry under Section
12-23 253.007 if:
12-24 (A) the employee does not request judicial
12-25 review of the determination; or
12-26 (B) the determination is sustained by the court.
12-27 (b) Not later than the 30th day after the date on which the
13-1 decision becomes final as provided by Chapter 2001, Government
13-2 Code, the employee may file a petition for judicial review
13-3 contesting the finding of the reportable conduct [an act of
13-4 misconduct]. If the employee does not request judicial review of
13-5 the determination, the department shall record the reportable
13-6 conduct [incident of misconduct] in the registry under Section
13-7 253.007.
13-8 (d) If the court sustains the finding of the occurrence of
13-9 the reportable conduct [an act of misconduct], the department shall
13-10 record the reportable conduct [incident of misconduct] in the
13-11 registry under Section 253.007.
13-12 SECTION 11. Subsections (a) and (b), Section 253.007, Health
13-13 and Safety Code, are amended to read as follows:
13-14 (a) If an employee commits reportable conduct [abuses,
13-15 neglects, or exploits a resident or consumer of a facility or
13-16 misappropriates a resident's or consumer's property], the
13-17 department shall make a record of the employee's name, the
13-18 employee's address, the employee's social security number, the name
13-19 of the facility, the address of the facility, the date [of] the
13-20 reportable conduct occurred [act of misconduct], and a description
13-21 of the reportable conduct [act of misconduct].
13-22 (b) If an agency of another state or the federal government
13-23 finds that an employee has committed an act that constitutes
13-24 reportable conduct [abused, neglected, or exploited a resident or
13-25 consumer of a facility or misappropriated a resident's or
13-26 consumer's property], the department may make a record in the
13-27 employee misconduct registry of the employee's name, the employee's
14-1 address, the employee's social security number, the name of the
14-2 facility, the address of the facility, the date of the act [of
14-3 misconduct], and a description of the act [of misconduct].
14-4 SECTION 12. Section 253.008, Health and Safety Code, is
14-5 amended to read as follows:
14-6 Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
14-7 facility or an agency licensed under Chapter 142 may hire an
14-8 employee, the facility or agency shall search the employee
14-9 misconduct registry under this chapter and the nurse aide registry
14-10 maintained under the Omnibus Budget Reconciliation Act of 1987
14-11 (Pub. L. No. 100-203) to determine whether the person is designated
14-12 in either registry as having abused, neglected, or exploited a
14-13 resident or consumer of a facility or an individual receiving
14-14 services from an agency licensed under Chapter 142.
14-15 (b) A facility or agency licensed under Chapter 142 may not
14-16 employ a person who is listed in either registry as having abused,
14-17 neglected, or exploited a resident or consumer of a facility or an
14-18 individual receiving services from an agency licensed under Chapter
14-19 142.
14-20 SECTION 13. Subsection (a), Section 253.009, Health and
14-21 Safety Code, is amended to read as follows:
14-22 (a) Each facility or each agency licensed under Chapter 142
14-23 shall notify its employees in a manner prescribed by the
14-24 department:
14-25 (1) about the employee misconduct registry; and
14-26 (2) that an employee may not be employed if the
14-27 employee is listed in the registry.
15-1 SECTION 14. Chapter 253, Health and Safety Code, is amended
15-2 by adding Sections 253.0075 and 253.010 to read as follows:
15-3 Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY
15-4 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. On receipt of a
15-5 finding of reportable conduct by the Department of Protective and
15-6 Regulatory Services under Subchapter I, Chapter 48, Human Resources
15-7 Code, the department shall record the information in the employee
15-8 misconduct registry.
15-9 Sec. 253.010. REMOVAL FROM REGISTRY. The department may
15-10 remove a person from the employee misconduct registry if, after
15-11 receiving a written request from the person, the department
15-12 determines that the person does not meet the requirements for
15-13 inclusion in the employee misconduct registry.
15-14 SECTION 15. (a) Except as provided by Subsection (b), this
15-15 Act takes effect immediately if it receives a vote of two-thirds of
15-16 all the members elected to each house, as provided by Section 39,
15-17 Article III, Texas Constitution. If this Act does not receive the
15-18 vote necessary for immediate effect, this Act takes effect
15-19 September 1, 2001.
15-20 (b) Section 1 of this Act takes effect January 1, 2002.
15-21 (c) Subchapter I, Chapter 48, Human Resources Code, as added
15-22 by this Act, applies only to reportable conduct that occurs on or
15-23 after the effective date of this Act.