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                                  * * * * *