1-1 By: Moncrief S.B. No. 1245
1-2 (In the Senate - Filed March 7, 2001; March 12, 2001, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 10, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 10, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1245 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to reporting certain acts of misconduct by and background
1-11 checks of certain employees and applicants for employment of
1-12 certain health care agencies and facilities.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Chapter 48, Human Resources Code, is amended by
1-15 adding Subchapter I to read as follows:
1-16 SUBCHAPTER I. EMPLOYEE MISCONDUCT REGISTRY
1-17 Sec. 48.401. DEFINITIONS. In this subchapter:
1-18 (1) "Agency" means an entity licensed under Chapter
1-19 142, Health and Safety Code.
1-20 (2) "Employee" means a person who:
1-21 (A) works for an agency;
1-22 (B) provides personal care services, active
1-23 treatment, or any other personal services to an individual
1-24 receiving agency services; and
1-25 (C) is not licensed by the state to perform the
1-26 services the person performs for the agency.
1-27 (3) "Employee misconduct registry" means the employee
1-28 misconduct registry established under Chapter 253, Health and
1-29 Safety Code.
1-30 (4) "Executive director" means the executive director
1-31 of the Department of Protective and Regulatory Services.
1-32 (5) "Reportable conduct" includes:
1-33 (A) abuse or neglect that causes or may cause
1-34 death or harm to an individual receiving agency services;
1-35 (B) sexual abuse of an individual receiving
1-36 agency services;
1-37 (C) financial exploitation of an individual
1-38 receiving agency services in an amount of $25 or more; and
1-39 (D) emotional, verbal, or psychological abuse
1-40 that causes harm to an individual receiving agency services.
1-41 Sec. 48.402. RULES RELATING TO REPORTABLE CONDUCT. The
1-42 department may adopt rules to further define reportable conduct.
1-43 Sec. 48.403. FINDING. After an investigation and following
1-44 the procedures of this subchapter, if the department confirms or
1-45 validates the occurrence of reportable conduct by an employee, the
1-46 department shall forward the finding to the Texas Department of
1-47 Human Services to record the reportable conduct in the employee
1-48 misconduct registry under Section 253.007, Health and Safety Code.
1-49 Sec. 48.404. NOTICE OF FINDING. (a) The department shall
1-50 give written notice of the department's findings under Section
1-51 48.403 to the employee. The notice must include:
1-52 (1) a brief summary of the department's findings;
1-53 (2) a statement of the employee's right to a hearing
1-54 on the department's findings; and
1-55 (3) a statement notifying the employee that if the
1-56 employee fails to timely respond to the notice, the finding that
1-57 the employee committed the reportable conduct will be recorded in
1-58 the employee misconduct registry under Section 253.007, Health and
1-59 Safety Code.
1-60 (b) Not later than the 30th day after the date the notice is
1-61 received, the employee notified may accept the finding of the
1-62 department made under Section 48.403 or may make a written request
1-63 for a hearing on that finding.
1-64 (c) If the employee notified of the violation accepts the
2-1 finding of the department or fails to timely respond to the notice,
2-2 the executive director or the executive director's designee shall
2-3 issue an order approving the finding and ordering that the
2-4 department's findings be forwarded to the Texas Department of Human
2-5 Services to be recorded in the employee misconduct registry under
2-6 Section 253.007, Health and Safety Code.
2-7 Sec. 48.405. HEARING; ORDER. (a) If the employee requests
2-8 a hearing, the department shall:
2-9 (1) set a hearing;
2-10 (2) give written notice of the hearing to the
2-11 employee; and
2-12 (3) designate a hearings examiner to conduct the
2-13 hearing.
2-14 (b) The hearings examiner shall make findings of fact and
2-15 conclusions of law and shall promptly issue to the executive
2-16 director or the executive director's designee a proposal for
2-17 decision as to the occurrence of the reportable conduct.
2-18 (c) Based on the findings of fact and conclusions of law and
2-19 the recommendations of the hearings examiner, the executive
2-20 director or the executive director's designee by order may find
2-21 that the reportable conduct has occurred. If the executive
2-22 director or the executive director's designee finds that reportable
2-23 conduct has occurred, the executive director or the executive
2-24 director's designee shall issue an order approving the finding.
2-25 Sec. 48.406. NOTICE; JUDICIAL REVIEW. (a) The department
2-26 shall give notice of the order under Section 48.405 to the employee
2-27 alleged to have committed the reportable conduct. The notice must
2-28 include:
2-29 (1) separate statements of the findings of fact and
2-30 conclusions of law;
2-31 (2) a statement of the right of the employee to
2-32 judicial review of the order; and
2-33 (3) a statement that the reportable conduct will be
2-34 recorded in the employee misconduct registry under Section 253.007,
2-35 Health and Safety Code, if:
2-36 (A) the employee does not request judicial
2-37 review of the finding; or
2-38 (B) the finding is sustained by the court.
2-39 (b) Not later than the 30th day after the date the decision
2-40 becomes final as provided by Chapter 2001, Government Code, the
2-41 employee may file a petition for judicial review contesting the
2-42 finding of the reportable conduct. If the employee does not
2-43 request judicial review of the finding, the department shall send a
2-44 record of the department's findings to the Texas Department of
2-45 Human Services to record in the employee misconduct registry under
2-46 Section 253.007, Health and Safety Code.
2-47 (c) Judicial review of the order:
2-48 (1) is instituted by filing a petition as provided by
2-49 Subchapter G, Chapter 2001, Government Code; and
2-50 (2) is under the substantial evidence rule.
2-51 (d) If the court sustains the finding of the occurrence of
2-52 the reportable conduct, the department shall forward the finding of
2-53 reportable conduct to the Texas Department of Human Services to
2-54 record the reportable conduct in the employee misconduct registry
2-55 under Section 253.007, Health and Safety Code.
2-56 Sec. 48.407. INFORMAL PROCEEDINGS. The department by rule
2-57 shall adopt procedures governing informal proceedings held in
2-58 compliance with Section 2001.056, Government Code.
2-59 Sec. 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT
2-60 REGISTRY. (a) When the department forwards a finding of
2-61 reportable conduct to the Texas Department of Human Services for
2-62 recording in the employee misconduct registry, the department shall
2-63 provide the employee's name, the employee's address, the employee's
2-64 social security number, if available, the name of the agency, the
2-65 address of the agency, the date the reportable conduct occurred,
2-66 and a description of the reportable conduct.
2-67 (b) If a governmental agency of another state or the federal
2-68 government finds that an employee has committed an act that
2-69 constitutes reportable conduct, the department may send to the
3-1 Texas Department of Human Services, for recording in the employee
3-2 misconduct registry, the employee's name, the employee's address,
3-3 the employee's social security number, if available, the name of
3-4 the agency, the address of the agency, the date of the act, and a
3-5 description of the act.
3-6 SECTION 2. Section 250.002, Health and Safety Code, is
3-7 amended to read as follows:
3-8 Sec. 250.002. INFORMATION OBTAINED BY FACILITY, REGULATORY
3-9 AGENCY, OR PRIVATE AGENCY. (a) A facility, a regulatory agency,
3-10 or a private agency on behalf of a facility is entitled to obtain
3-11 from the Department of Public Safety of the State of Texas criminal
3-12 history record information maintained by the Department of Public
3-13 Safety that relates to a person who is:
3-14 (1) an applicant for employment at a facility other
3-15 than a facility licensed under Chapter 142;
3-16 (2) [licensed, certified, or under contract with the
3-17 agency, as specified by Section 250.001(3), or who is] an employee
3-18 of a [that] facility other than a facility licensed under Chapter
3-19 142; or
3-20 (3) an applicant for employment at or an employee of a
3-21 facility licensed under Chapter 142[, and] whose employment duties
3-22 would or do involve direct contact with a consumer in the [a]
3-23 facility.
3-24 (b) A facility may:
3-25 (1) pay a private agency to obtain criminal history
3-26 record information for an applicant or employee described by
3-27 Subsection (a) directly from the Department of Public Safety of the
3-28 State of Texas; or
3-29 (2) obtain the information directly from the
3-30 Department of Public Safety [from the regulatory agency that
3-31 obtains the information from the Department of Public Safety of the
3-32 State of Texas regarding that facility].
3-33 (c) The [regulatory agency or] private agency[, as
3-34 appropriate,] shall forward criminal history record information
3-35 received under this section to the facility requesting the
3-36 information.
3-37 (d) A regulatory agency may adopt rules relating to the
3-38 processing of information requested or obtained under this chapter.
3-39 SECTION 3. Section 250.003, Health and Safety Code, is
3-40 amended to read as follows:
3-41 Sec. 250.003. VERIFICATION OF EMPLOYABILITY; DISCHARGE.
3-42 (a) A facility may not employ a person [in a position the duties
3-43 of which involve direct contact with a consumer in the facility] if
3-44 the facility determines, as a result of a criminal history check,
3-45 that a person has been convicted of an offense listed in this
3-46 chapter that bars employment or that a conviction is a
3-47 contraindication to employment with the consumers the facility
3-48 serves, and if the applicant is a nurse aide, until the facility
3-49 further verifies that the applicant is listed in the nurse aide
3-50 registry and verifies that the applicant is not designated in the
3-51 registry as having a finding entered into the registry concerning
3-52 abuse, neglect, or mistreatment of a consumer of a facility, or
3-53 misappropriation of a consumer's property. A person licensed under
3-54 another law of this state is exempt from the requirements of this
3-55 chapter.
3-56 (b) The facility may not employ an applicant covered by
3-57 Subsection (a), except that in an emergency requiring immediate
3-58 employment, a facility may hire on a temporary or interim basis a
3-59 person not listed in the registry pending the results of a criminal
3-60 conviction check, which must be requested within 72 hours of
3-61 employment. [The request shall be mailed, sent by telephonic
3-62 facsimile machine, sent by electronic means, or otherwise forwarded
3-63 to the facility's regulatory agency by the facility or a private
3-64 agency working with the facility, or to the Department of Public
3-65 Safety of the State of Texas by a private agency working with the
3-66 facility.]
3-67 (c) A facility shall immediately discharge any employee [in
3-68 a position the duties of which involve direct contact with a
3-69 consumer in the facility] who is designated in the nurse aide
4-1 registry or the employee misconduct registry established under
4-2 Chapter 253 as having committed an act of abuse, neglect, or
4-3 mistreatment of a consumer of a facility, or misappropriation of a
4-4 consumer's property, or whose criminal history check reveals
4-5 conviction of a crime that bars employment or that the facility
4-6 determines is a contraindication to employment as provided by this
4-7 chapter.
4-8 SECTION 4. Subsection (a), Section 250.004, Health and
4-9 Safety Code, is amended to read as follows:
4-10 (a) Identifying information of an employee [in direct
4-11 contact with a consumer] in a covered facility shall be submitted
4-12 electronically, on disk, or on a typewritten form to the Department
4-13 of Public Safety to obtain the person's criminal conviction record
4-14 when the person applies for employment and at other times as the
4-15 facility may determine appropriate. In this subsection,
4-16 "identifying information" includes:
4-17 (1) the complete name, race, and sex of the employee;
4-18 (2) any known identifying number of the employee,
4-19 including social security number, driver's license number, or state
4-20 identification number; and
4-21 (3) the employee's date of birth.
4-22 SECTION 5. Section 250.006, Health and Safety Code, is
4-23 amended to read as follows:
4-24 Sec. 250.006. CONVICTIONS BARRING EMPLOYMENT. A person for
4-25 whom the facility is entitled to obtain criminal history record
4-26 information may not be employed in a facility if the person has
4-27 been convicted of an offense listed in this section [may not be
4-28 employed in a position the duties of which involve direct contact
4-29 with a consumer in a facility]:
4-30 (1) an offense under Chapter 19, Penal Code (criminal
4-31 homicide);
4-32 (2) an offense under Chapter 20, Penal Code
4-33 (kidnapping and false imprisonment);
4-34 (3) an offense under Section 21.11, Penal Code
4-35 (indecency with a child);
4-36 (4) an offense under Section 22.011, Penal Code
4-37 (sexual assault);
4-38 (5) an offense under Section 22.02, Penal Code
4-39 (aggravated assault);
4-40 (6) an offense under Section 22.04, Penal Code (injury
4-41 to a child, elderly individual, or disabled individual);
4-42 (7) an offense under Section 22.041, Penal Code
4-43 (abandoning or endangering child);
4-44 (8) an offense under Section 22.08, Penal Code (aiding
4-45 suicide);
4-46 (9) an offense under Section 25.031, Penal Code
4-47 (agreement to abduct from custody);
4-48 (10) an offense under Section 25.08, Penal Code (sale
4-49 or purchase of a child);
4-50 (11) an offense under Section 28.02, Penal Code
4-51 (arson);
4-52 (12) an offense under Section 29.02, Penal Code
4-53 (robbery); [or]
4-54 (13) an offense under Section 29.03, Penal Code
4-55 (aggravated robbery); or
4-56 (14) a conviction under the laws of another state,
4-57 federal law, or the Uniform Code of Military Justice for an offense
4-58 containing elements that are substantially similar to the elements
4-59 of an offense listed under Subdivisions (1)-(13).
4-60 SECTION 6. Section 253.001, Health and Safety Code, is
4-61 amended by adding Subdivision (5) to read as follows:
4-62 (5) "Reportable conduct" includes:
4-63 (A) abuse or neglect that causes or may cause
4-64 death or harm to a resident or consumer of a facility;
4-65 (B) sexual abuse of a resident or consumer of a
4-66 facility;
4-67 (C) financial exploitation of a resident or
4-68 consumer of a facility in an amount of $25 or more; and
4-69 (D) emotional, verbal, or psychological abuse
5-1 that causes harm to a resident or consumer of a facility.
5-2 SECTION 7. Section 253.002, Health and Safety Code, is
5-3 amended to read as follows:
5-4 Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the
5-5 department receives a report that an employee of a facility
5-6 committed reportable conduct [has abused, neglected, or exploited a
5-7 resident or consumer of a facility or misappropriated a resident's
5-8 or consumer's property], the department shall investigate the
5-9 report to determine whether the employee has committed the
5-10 reportable conduct [act of abuse, neglect, exploitation, or
5-11 misappropriation].
5-12 SECTION 8. Subsections (a) and (c), Section 253.003, Health
5-13 and Safety Code, are amended to read as follows:
5-14 (a) If, after an investigation, the department determines
5-15 that the reportable conduct occurred [employee abused, neglected,
5-16 or exploited a resident or consumer of the facility or
5-17 misappropriated a resident's or consumer's property], the
5-18 department shall give written notice of the department's findings.
5-19 The notice must include:
5-20 (1) a brief summary of the department's findings; and
5-21 (2) a statement of the person's right to a hearing on
5-22 the occurrence of the reportable conduct [misconduct].
5-23 (c) If the employee notified of the violation accepts the
5-24 determination of the department or fails to timely respond to the
5-25 notice, the commissioner or the commissioner's designee shall issue
5-26 an order approving the determination and ordering that the
5-27 reportable conduct [incident of misconduct] be recorded in the
5-28 registry under Section 253.007.
5-29 SECTION 9. Subsections (b) and (c), Section 253.004, Health
5-30 and Safety Code, are amended to read as follows:
5-31 (b) The hearings examiner shall make findings of fact and
5-32 conclusions of law and shall promptly issue to the commissioner or
5-33 the commissioner's designee a proposal for decision as to the
5-34 occurrence of the reportable conduct [violation].
5-35 (c) Based on the findings of fact and conclusions of law and
5-36 the recommendations of the hearings examiner, the commissioner or
5-37 the commissioner's designee by order may find that the reportable
5-38 conduct [an act of misconduct] has occurred. If the commissioner
5-39 or the commissioner's designee finds that the reportable conduct
5-40 [an act of misconduct] has occurred, the commissioner or the
5-41 commissioner's designee shall issue an order approving the
5-42 determination.
5-43 SECTION 10. Subsections (a), (b), and (d), Section 253.005,
5-44 Health and Safety Code, are amended to read as follows:
5-45 (a) The department shall give notice of the order under
5-46 Section 253.004 to the employee alleged to have committed the
5-47 reportable conduct [act of misconduct]. The notice must include:
5-48 (1) separate statements of the findings of fact and
5-49 conclusions of law;
5-50 (2) a statement of the right of the employee to
5-51 judicial review of the order; and
5-52 (3) a statement that the reportable conduct [incident
5-53 of misconduct] will be recorded in the registry under Section
5-54 253.007 if:
5-55 (A) the employee does not request judicial
5-56 review of the determination; or
5-57 (B) the determination is sustained by the court.
5-58 (b) Not later than the 30th day after the date on which the
5-59 decision becomes final as provided by Chapter 2001, Government
5-60 Code, the employee may file a petition for judicial review
5-61 contesting the finding of the reportable conduct [an act of
5-62 misconduct]. If the employee does not request judicial review of
5-63 the determination, the department shall record the reportable
5-64 conduct [incident of misconduct] in the registry under Section
5-65 253.007.
5-66 (d) If the court sustains the finding of the occurrence of
5-67 the reportable conduct [an act of misconduct], the department shall
5-68 record the reportable conduct [incident of misconduct] in the
5-69 registry under Section 253.007.
6-1 SECTION 11. Subsections (a) and (b), Section 253.007, Health
6-2 and Safety Code, are amended to read as follows:
6-3 (a) If an employee commits reportable conduct [abuses,
6-4 neglects, or exploits a resident or consumer of a facility or
6-5 misappropriates a resident's or consumer's property], the
6-6 department shall make a record of the employee's name, the
6-7 employee's address, the employee's social security number, the name
6-8 of the facility, the address of the facility, the date [of] the
6-9 reportable conduct occurred [act of misconduct], and a description
6-10 of the reportable conduct [act of misconduct].
6-11 (b) If an agency of another state or the federal government
6-12 finds that an employee has committed an act that constitutes
6-13 reportable conduct [abused, neglected, or exploited a resident or
6-14 consumer of a facility or misappropriated a resident's or
6-15 consumer's property], the department may make a record in the
6-16 employee misconduct registry of the employee's name, the employee's
6-17 address, the employee's social security number, the name of the
6-18 facility, the address of the facility, the date of the act [of
6-19 misconduct], and a description of the act [of misconduct].
6-20 SECTION 12. Section 253.008, Health and Safety Code, is
6-21 amended to read as follows:
6-22 Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
6-23 facility or an agency licensed under Chapter 142 may hire an
6-24 employee, the facility or agency shall search the employee
6-25 misconduct registry under this chapter and the nurse aide registry
6-26 maintained under the Omnibus Budget Reconciliation Act of 1987
6-27 (Pub. L. No. 100-203) to determine whether the person is designated
6-28 in either registry as having abused, neglected, or exploited a
6-29 resident or consumer of a facility or an individual receiving
6-30 services from an agency licensed under Chapter 142.
6-31 (b) A facility or agency licensed under Chapter 142 may not
6-32 employ a person who is listed in either registry as having abused,
6-33 neglected, or exploited a resident or consumer of a facility or an
6-34 individual receiving services from an agency licensed under Chapter
6-35 142.
6-36 SECTION 13. Subsection (a), Section 253.009, Health and
6-37 Safety Code, is amended to read as follows:
6-38 (a) Each facility or each agency licensed under Chapter 142
6-39 shall notify its employees in a manner prescribed by the
6-40 department:
6-41 (1) about the employee misconduct registry; and
6-42 (2) that an employee may not be employed if the
6-43 employee is listed in the registry.
6-44 SECTION 14. Chapter 253, Health and Safety Code, is amended
6-45 by adding Sections 253.0075 and 253.010 to read as follows:
6-46 Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY
6-47 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES. On receipt of a
6-48 finding of reportable conduct by the Department of Protective and
6-49 Regulatory Services under Subchapter I, Chapter 48, Human Resources
6-50 Code, the department shall record the information in the employee
6-51 misconduct registry.
6-52 Sec. 253.010. REMOVAL FROM REGISTRY. The department may
6-53 remove a person from the employee misconduct registry if, after
6-54 receiving a written request from the person, the department
6-55 determines that the person does not meet the requirements for
6-56 inclusion in the employee misconduct registry.
6-57 SECTION 15. (a) This Act takes effect immediately if it
6-58 receives a vote of two-thirds of all the members elected to each
6-59 house, as provided by Section 39, Article III, Texas Constitution.
6-60 If this Act does not receive the vote necessary for immediate
6-61 effect, this Act takes effect September 1, 2001.
6-62 (b) Subchapter I, Chapter 48, Human Resources Code, as added
6-63 by this Act, applies only to reportable conduct that occurs on or
6-64 after the effective date of this Act.
6-65 * * * * *