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.