By Moncrief S.B. No. 1245
77R7618 MCK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to providing for the registry of acts of misconduct by
1-3 certain employees of certain health care agencies and facilities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 48, Human Resources Code, is amended by
1-6 adding Subchapter I to read as follows:
1-7 SUBCHAPTER I. EMPLOYEE MISCONDUCT REGISTRY
1-8 Sec. 48.401. DEFINITIONS. In this subchapter:
1-9 (1) "Agency" means an entity licensed under Chapter
1-10 142, Health and Safety Code.
1-11 (2) "Employee" means a person who:
1-12 (A) works for an agency;
1-13 (B) provides personal care services, active
1-14 treatment, or any other personal services to an individual
1-15 receiving agency services; and
1-16 (C) is not licensed by the state to perform the
1-17 services the person performs for the agency.
1-18 (3) "Employee misconduct registry" means the employee
1-19 misconduct registry established under Chapter 253, Health and
1-20 Safety Code.
1-21 (4) "Executive director" means the executive director
1-22 of the Department of Protective and Regulatory Services.
1-23 (5) "Reportable conduct" includes:
1-24 (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 registry
2-15 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.
2-27 (b) Not later than the 30th day after the date the notice is
3-1 received, the employee notified may accept the finding of the
3-2 department made under this section or may make a written request
3-3 for a hearing on that finding.
3-4 (c) If the employee notified of the violation accepts the
3-5 finding of the department or fails to timely respond to the notice,
3-6 the executive director or the executive director's designee shall
3-7 issue an order approving the finding and ordering that the
3-8 department's findings be forwarded to the Texas Department of Human
3-9 Services to be recorded in the registry under Section 253.007,
3-10 Health and Safety Code.
3-11 Sec. 48.405. HEARING; ORDER. (a) If the employee requests a
3-12 hearing, the department shall:
3-13 (1) set a hearing;
3-14 (2) give written notice of the hearing to the
3-15 employee; and
3-16 (3) designate a hearings examiner to conduct the
3-17 hearing.
3-18 (b) The hearings examiner shall make findings of fact and
3-19 conclusions of law and shall promptly issue to the executive
3-20 director or the executive director's designee a proposal for
3-21 decision as to the occurrence of the reportable conduct.
3-22 (c) Based on the findings of fact and conclusions of law and
3-23 the recommendations of the hearings examiner, the executive
3-24 director or the executive director's designee by order may find
3-25 that the reportable conduct has occurred. If the executive
3-26 director or the executive director's designee finds that reportable
3-27 conduct has occurred, the executive director or the executive
4-1 director's designee shall issue an order approving the finding.
4-2 Sec. 48.406. NOTICE; JUDICIAL REVIEW. (a) The department
4-3 shall give notice of the order under Section 48.405 to the employee
4-4 alleged to have committed the reportable conduct. The notice must
4-5 include:
4-6 (1) separate statements of the findings of fact and
4-7 conclusions of law;
4-8 (2) a statement of the right of the employee to
4-9 judicial review of the order; and
4-10 (3) a statement that the reportable conduct will be
4-11 recorded in the registry under Section 253.007, Health and Safety
4-12 Code, if:
4-13 (A) the employee does not request judicial
4-14 review of the finding; or
4-15 (B) the finding is sustained by the court.
4-16 (b) Not later than the 30th day after the date the decision
4-17 becomes final as provided by Chapter 2001, Government Code, the
4-18 employee may file a petition for judicial review contesting the
4-19 finding of the reportable conduct. If the employee does not
4-20 request judicial review of the finding, the department shall send a
4-21 record of the department's findings to the Texas Department of
4-22 Human Services to record in the registry under Section 253.007,
4-23 Health and Safety Code.
4-24 (c) Judicial review of the order:
4-25 (1) is instituted by filing a petition as provided by
4-26 Subchapter G, Chapter 2001, Government Code; and
4-27 (2) is under the substantial evidence rule.
5-1 (d) If the court sustains the finding of the occurrence of
5-2 the reportable conduct, the department shall forward the finding of
5-3 reportable conduct to the Texas Department of Human Services to
5-4 record the reportable conduct in the registry under Section
5-5 253.007, Health and Safety Code.
5-6 Sec. 48.407. INFORMAL PROCEEDINGS. The department by rule
5-7 shall adopt procedures governing informal proceedings held in
5-8 compliance with Section 2001.056, Government Code.
5-9 Sec. 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT
5-10 REGISTRY. (a) When the department forwards a finding of reportable
5-11 conduct to the Texas Department of Human Services for recording in
5-12 the employee misconduct registry, the department shall provide the
5-13 employee's name, the employee's address, the employee's social
5-14 security number, if available, the name of the agency, the address
5-15 of the agency, the date the reportable conduct occurred, and a
5-16 description of the reportable conduct.
5-17 (b) If a governmental agency of another state or the federal
5-18 government finds that an employee has committed an act that
5-19 constitutes reportable conduct, the department may send to the
5-20 Texas Department of Human Services, for recording in the employee
5-21 misconduct registry, the employee's name, the employee's address,
5-22 the employee's social security number, if available, the name of
5-23 the agency, the address of the agency, the date of the act, and a
5-24 description of the act.
5-25 SECTION 2. Section 253.001, Health and Safety Code, is
5-26 amended by adding Subdivision (5) to read as follows:
5-27 (5) "Reportable conduct" includes:
6-1 (A) abuse or neglect that causes or may cause
6-2 death or harm to a resident or consumer of a facility;
6-3 (B) sexual abuse of a resident or consumer of a
6-4 facility;
6-5 (C) financial exploitation of a resident or
6-6 consumer of a facility in an amount of $25 or more; and
6-7 (D) emotional, verbal, or psychological abuse
6-8 that causes harm to a resident or consumer of a facility.
6-9 SECTION 3. Section 253.002, Health and Safety Code, is
6-10 amended to read as follows:
6-11 Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the department
6-12 receives a report that an employee of a facility committed
6-13 reportable conduct [has abused, neglected, or exploited a resident
6-14 or consumer of a facility or misappropriated a resident's or
6-15 consumer's property], the department shall investigate the report
6-16 to determine whether the employee has committed the reportable
6-17 conduct [act of abuse, neglect, exploitation, or misappropriation].
6-18 SECTION 4. Sections 253.003(a) and (c), Health and Safety
6-19 Code, are amended to read as follows:
6-20 (a) If, after an investigation, the department determines
6-21 that the reportable conduct occurred [employee abused, neglected,
6-22 or exploited a resident or consumer of the facility or
6-23 misappropriated a resident's or consumer's property], the
6-24 department shall give written notice of the department's findings.
6-25 The notice must include:
6-26 (1) a brief summary of the department's findings; and
6-27 (2) a statement of the person's right to a hearing on
7-1 the occurrence of the reportable conduct [misconduct].
7-2 (c) If the employee notified of the violation accepts the
7-3 determination of the department or fails to timely respond to the
7-4 notice, the commissioner or the commissioner's designee shall issue
7-5 an order approving the determination and ordering that the
7-6 reportable conduct [incident of misconduct] be recorded in the
7-7 registry under Section 253.007.
7-8 SECTION 5. Sections 253.004(b) and (c), Health and Safety
7-9 Code, are amended to read as follows:
7-10 (b) The hearings examiner shall make findings of fact and
7-11 conclusions of law and shall promptly issue to the commissioner or
7-12 the commissioner's designee a proposal for decision as to the
7-13 occurrence of the reportable conduct [violation].
7-14 (c) Based on the findings of fact and conclusions of law and
7-15 the recommendations of the hearings examiner, the commissioner or
7-16 the commissioner's designee by order may find that the reportable
7-17 conduct [an act of misconduct] has occurred. If the commissioner
7-18 or the commissioner's designee finds that the reportable conduct
7-19 [an act of misconduct] has occurred, the commissioner or the
7-20 commissioner's designee shall issue an order approving the
7-21 determination.
7-22 SECTION 6. Sections 253.005(a), (b), and (d), Health and
7-23 Safety Code, are amended to read as follows:
7-24 (a) The department shall give notice of the order under
7-25 Section 253.004 to the employee alleged to have committed the
7-26 reportable conduct [act of misconduct]. The notice must include:
7-27 (1) separate statements of the findings of fact and
8-1 conclusions of law;
8-2 (2) a statement of the right of the employee to
8-3 judicial review of the order; and
8-4 (3) a statement that the reportable conduct [incident
8-5 of misconduct] will be recorded in the registry under Section
8-6 253.007 if:
8-7 (A) the employee does not request judicial
8-8 review of the determination; or
8-9 (B) the determination is sustained by the court.
8-10 (b) Not later than the 30th day after the date on which the
8-11 decision becomes final as provided by Chapter 2001, Government
8-12 Code, the employee may file a petition for judicial review
8-13 contesting the finding of the reportable conduct [an act of
8-14 misconduct]. If the employee does not request judicial review of
8-15 the determination, the department shall record the reportable
8-16 conduct [incident of misconduct] in the registry under Section
8-17 253.007.
8-18 (d) If the court sustains the finding of the occurrence of
8-19 the reportable conduct [an act of misconduct], the department shall
8-20 record the reportable conduct [incident of misconduct] in the
8-21 registry under Section 253.007.
8-22 SECTION 7. Sections 253.007(a) and (b), Health and Safety
8-23 Code, are amended to read as follows:
8-24 (a) If an employee commits reportable conduct [abuses,
8-25 neglects, or exploits a resident or consumer of a facility or
8-26 misappropriates a resident's or consumer's property], the
8-27 department shall make a record of the employee's name, the
9-1 employee's address, the employee's social security number, the name
9-2 of the facility, the address of the facility, the date [of] the
9-3 reportable conduct occurred [act of misconduct], and a description
9-4 of the reportable conduct [act of misconduct].
9-5 (b) If an agency of another state or the federal government
9-6 finds that an employee has committed an act that constitutes
9-7 reportable conduct [abused, neglected, or exploited a resident or
9-8 consumer of a facility or misappropriated a resident's or
9-9 consumer's property], the department may make a record in the
9-10 employee misconduct registry of the employee's name, the employee's
9-11 address, the employee's social security number, the name of the
9-12 facility, the address of the facility, the date of the act [of
9-13 misconduct], and a description of the act [of misconduct].
9-14 SECTION 8. Section 253.008, Health and Safety Code, is
9-15 amended to read as follows:
9-16 Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
9-17 facility or an agency licensed under Chapter 142 may hire an
9-18 employee, the facility or agency shall search the employee
9-19 misconduct registry under this chapter and the nurse aide registry
9-20 maintained under the Omnibus Budget Reconciliation Act of 1987
9-21 (Pub. L. No. 100-203) to determine whether the person is designated
9-22 in either registry as having abused, neglected, or exploited a
9-23 resident or consumer of a facility or an individual receiving
9-24 services from an agency licensed under Chapter 142.
9-25 (b) A facility or agency licensed under Chapter 142 may not
9-26 employ a person who is listed in either registry as having abused,
9-27 neglected, or exploited a resident or consumer of a facility or an
10-1 individual receiving services from an agency licensed under Chapter
10-2 142.
10-3 SECTION 9. Section 253.009(a), Health and Safety Code, is
10-4 amended to read as follows:
10-5 (a) Each facility or each agency licensed under Chapter 142
10-6 shall notify its employees in a manner prescribed by the
10-7 department:
10-8 (1) about the employee misconduct registry; and
10-9 (2) that an employee may not be employed if the
10-10 employee is listed in the registry.
10-11 SECTION 10. Chapter 253, Health and Safety Code, is amended
10-12 by adding Sections 253.0075 and 253.010 to read as follows:
10-13 Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY
10-14 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. On receipt of a
10-15 finding of reportable conduct by the Department of Protective and
10-16 Regulatory Services under Subchapter I, Chapter 48, Human Resources
10-17 Code, the department shall record the information in the employee
10-18 misconduct registry.
10-19 Sec. 253.010. REMOVAL FROM REGISTRY. The department may
10-20 remove a person from the employee misconduct registry if, after
10-21 receiving a written request from the person, the department
10-22 determines that the person does not meet the requirements for
10-23 inclusion in the employee misconduct registry.
10-24 SECTION 11. (a) This Act takes effect September 1, 2001.
10-25 (b) Subchapter I, Chapter 48, Human Resources Code, as added
10-26 by this Act, applies only to reportable conduct that occurs on or
10-27 after that date.