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79R1826 YDB-D
By: Nelson S.B. No. 195
A BILL TO BE ENTITLED
AN ACT
relating to a nurse or nurse aide employed by a temporary nursing
service agency to provide hospice services to patients; providing a
penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
amended by adding Chapter 254 to read as follows:
CHAPTER 254. TEMPORARY NURSING SERVICE AGENCY
Sec. 254.001. DEFINITIONS. In this chapter:
(1) "Hospice services" means palliative care provided
to a terminally ill patient or a patient's family as part of a
coordinated program of medical and other services available 24
hours a day, seven days a week, during the last stages of illness,
death, and bereavement, and provided according to need in a home,
nursing home, residential facility, or inpatient facility. The
term does not include inpatient care normally provided in a
licensed hospital to a terminally ill patient who has not elected to
receive hospice services.
(2) "Nurse" has the meaning assigned by Section
301.002(3), Occupations Code.
(3) "Nurse aide" means a person who is practicing
under the delegated authority of a registered nurse and is
authorized by state or federal law to use the title "nurse aide" or
is required to be listed in the nurse aide registry under Chapter
250.
(4) "Private agency" means a person engaged in the
business of obtaining criminal history record information on behalf
of a temporary nursing service agency.
(5) "Temporary nursing service agency" means a person
that employs a nurse or nurse aide and assigns the nurse or nurse
aide to temporarily provide hospice services to patients or their
families either directly or through an institution, facility, or
other agency. The term includes a temporary employment service,
nursing pool, private duty nurse service, or sitter service.
Sec. 254.002. APPLICANT AND EMPLOYEE INFORMATION; EMPLOYEE
TRAINING. (a) A temporary nursing service agency may not employ a
person as a nurse or nurse aide to temporarily provide hospice
services unless the temporary nursing service agency:
(1) obtains criminal history record information on the
person in accordance with this chapter;
(2) obtains references on the person; and
(3) verifies that:
(A) for a person applying for a position with the
agency as a nurse, the person is licensed under Chapter 301,
Occupations Code; or
(B) for a person applying for a position as a
nurse aide, the person is registered under Chapter 250 unless the
applicant is exempt from the registration requirements under that
chapter.
(b) On employment of a person as a nurse or nurse aide to
provide hospice services, a temporary nursing service agency shall
provide and require the person to successfully complete as a
condition of employment a training program of not less than five
hours on the proper provision of hospice services.
Sec. 254.003. INFORMATION OBTAINED BY TEMPORARY NURSING
SERVICE AGENCY OR PRIVATE AGENCY. (a) A temporary nursing service
agency or private agency is entitled to obtain from the Department
of Public Safety criminal history record information maintained by
the department that relates to a person who is:
(1) an applicant for employment as a nurse or nurse
aide to temporarily provide hospice services for a temporary
nursing service agency; or
(2) a nurse or nurse aide employed by a temporary
nursing service agency to temporarily provide hospice services.
(b) A temporary nursing service agency may:
(1) pay a private agency to obtain criminal history
record information for an applicant or employee described by
Subsection (a) directly from the Department of Public Safety; or
(2) obtain the information directly from the
department.
(c) A private agency shall forward criminal history record
information received under this section to the temporary nursing
service agency requesting the information.
Sec. 254.004. VERIFICATION OF EMPLOYABILITY; DISCHARGE.
(a) A temporary nursing service agency may not employ a person as a
nurse or nurse aide to temporarily provide hospice services if the
agency determines, as a result of obtaining criminal history record
information, that the person has been convicted of an offense
listed in this chapter that:
(1) bars employment; or
(2) is a contraindication to employment with the
persons the agency serves.
(b) A temporary nursing service agency may not employ an
applicant as a nurse aide to temporarily provide hospice services
if the agency determines:
(1) the applicant is not listed in the nurse aide
registry established under Chapter 250, unless the applicant is
exempt from the registration requirements under that chapter; or
(2) the applicant is designated in the registry as
having a finding entered into the registry concerning abuse,
neglect, or mistreatment of a consumer or misappropriation of a
consumer's property.
(c) A temporary nursing service agency shall immediately
discharge a person whom the agency determines may not be employed
under Subsection (a) or (b).
Sec. 254.005. CRIMINAL HISTORY RECORD OF APPLICANTS AND
EMPLOYEES. (a) In this section, "identifying information"
includes:
(1) the complete name, race, and sex of an applicant or
employee;
(2) any known identifying number of the applicant or
employee, including social security number, driver's license
number, or state identification number; and
(3) the applicant's or employee's date of birth.
(b) A temporary nursing service agency shall submit
electronically, on disk, or on a typewritten form to the Department
of Public Safety identifying information for an applicant or
employee to obtain the person's criminal history record
information:
(1) at the time the person applies for employment as a
nurse or nurse aide to temporarily provide hospice services; and
(2) at other times as the agency may determine
appropriate.
(c) The temporary nursing service agency shall review a
criminal conviction of any kind reported by the Department of
Public Safety to determine whether the conviction bars the person
from employment in the agency under Section 254.007 or is a
contraindication to employment.
Sec. 254.006. NOTICE AND OPPORTUNITY TO BE HEARD CONCERNING
ACCURACY OF INFORMATION. (a) If a temporary nursing service agency
believes a conviction bars a person from employment in the agency
under Section 254.007 or is a contraindication to employment, the
agency shall notify the applicant or employee.
(b) The Department of Public Safety shall:
(1) give a person notified under Subsection (a) the
opportunity to be heard concerning the accuracy of the criminal
history record information; and
(2) notify the temporary nursing service agency if
inaccurate information is discovered.
Sec. 254.007. CONVICTIONS BARRING EMPLOYMENT. (a) A
person regarding whom a temporary nursing service agency is
entitled to obtain criminal history record information under this
chapter may not be employed by the agency if the person has been
convicted of an offense under:
(1) Chapter 19, Penal Code (criminal homicide);
(2) Chapter 20, Penal Code (kidnapping and unlawful
restraint);
(3) Section 21.11, Penal Code (indecency with a
child);
(4) Section 22.011, Penal Code (sexual assault);
(5) Section 22.02, Penal Code (aggravated assault);
(6) Section 22.04, Penal Code (injury to a child,
elderly individual, or disabled individual);
(7) Section 22.041, Penal Code (abandoning or
endangering child);
(8) Section 22.08, Penal Code (aiding suicide);
(9) Section 25.031, Penal Code (agreement to abduct
from custody);
(10) Section 25.08, Penal Code (sale or purchase of a
child);
(11) Section 28.02, Penal Code (arson);
(12) Section 29.02, Penal Code (robbery);
(13) Section 29.03, Penal Code (aggravated robbery);
or
(14) the laws of another state, federal law, or the
Uniform Code of Military Justice for an offense containing elements
that are substantially similar to the elements of an offense listed
under Subdivisions (1)-(13).
(b) A person may not be employed in a position the duties of
which involve direct contact with a patient as a nurse or nurse aide
temporarily providing hospice services for a temporary nursing
service agency before the fifth anniversary of the date on which the
person is convicted of an offense under:
(1) Section 22.01, Penal Code (assault), that is
punishable as a Class A misdemeanor or as a felony;
(2) Section 30.02, Penal Code (burglary);
(3) Chapter 31, Penal Code (theft), that is punishable
as a felony;
(4) Section 32.45, Penal Code (misapplication of
fiduciary property or property of a financial institution), that is
punishable as a Class A misdemeanor or a felony; or
(5) Section 32.46, Penal Code (securing execution of a
document by deception), that is punishable as a Class A misdemeanor
or a felony.
Sec. 254.008. RECORDS PRIVILEGED. (a) The criminal
history records are for the exclusive use of the temporary nursing
service agency, the private agency that obtained the records on
behalf of the requesting temporary nursing service agency, and the
applicant or employee who is the subject of the records.
(b) All criminal history records and reports and the
information contained in the records and reports received by the
temporary nursing service agency, or by the private agency for the
purpose of being forwarded to the requesting agency, are privileged
and confidential information.
(c) The criminal history records and reports and the
information contained in the records and reports may not be
released or otherwise disclosed to any person except on court order
or with the written consent of the person being investigated.
Sec. 254.009. CRIMINAL PENALTY. (a) A person commits an
offense if the person releases or otherwise discloses any
information received under this chapter except as prescribed by
Section 254.008.
(b) An offense under this section is a Class A misdemeanor.
SECTION 2. Subchapter F, Chapter 411, Government Code, is
amended by adding section 411.1161 to read as follows:
Sec. 411.1161. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: TEMPORARY NURSING SERVICE AGENCY PROVIDING CERTAIN
NURSES AND NURSE AIDES. (a) In this section, "hospice services,"
"nurse," "nurse aide," and "temporary nursing service agency" have
the meanings assigned by Section 254.001, Health and Safety Code.
(b) A temporary nursing service agency that employs nurses
and nurse aides to temporarily provide hospice services is entitled
to obtain from the department criminal history record information
maintained by the department that relates to a person who is:
(1) an applicant for employment by the temporary
nursing service agency as a nurse or nurse aide to temporarily
provide hospice services; or
(2) a nurse or nurse aide employed by the temporary
nursing service agency to temporarily provide hospice services.
SECTION 3. The change in law made by this Act does not
require a temporary nursing service agency to comply with Section
254.002, Health and Safety Code, as added by this Act, for a person
who:
(1) is employed by a facility on the effective date of
this Act; and
(2) remains continuously employed by that facility.
SECTION 4. This Act takes effect September 1, 2005.