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A BILL TO BE ENTITLED
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AN ACT
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relating to the employee misconduct registry and employee |
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certification posting requirements for certain facilities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter B, Chapter 242, Health and Safety |
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Code, is amended by adding Section 242.053 to read as follows: |
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Sec. 242.053. CERTIFIED NURSE AIDE REGISTRATION. Each |
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institution shall make available on request a copy of the |
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registration issued by the department for each certified nurse aide |
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employed by or working at the facility. |
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SECTION 2. The heading to Section 250.003, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 250.003. VERIFICATION OF EMPLOYABILITY; ANNUAL |
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SEARCH; DISCHARGE. |
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SECTION 3. Section 250.003, Health and Safety Code, is |
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amended by amending Subsection (a) and adding Subsections (a-1) and |
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(d) to read as follows: |
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(a) A facility may not employ an applicant: |
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(1) [a person] if the facility determines, as a result |
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of a criminal history check, that the applicant [a person] has been |
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convicted of an offense listed in this chapter that bars employment |
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or that a conviction is a contraindication to employment with the |
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consumers the facility serves; |
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(2) [, and] if the applicant is a nurse aide, until the |
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facility further verifies that the applicant is listed in the nurse |
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aide registry; and |
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(3) until the facility verifies that the applicant is |
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not designated in the registry maintained under this chapter or in |
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the employee misconduct registry maintained under Section 253.007 |
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as having a finding entered into the registry concerning abuse, |
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neglect, or mistreatment of a consumer of a facility, or |
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misappropriation of a consumer's property. |
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(a-1) Except for an applicant for employment at or an |
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employee of a facility licensed under Chapter 242 or 247, a person |
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licensed under another law of this state is exempt from the |
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requirements of this chapter. |
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(d) In addition to the initial verification of |
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employability, a facility shall annually search the nurse aide |
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registry maintained under this chapter and the employee misconduct |
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registry maintained under Section 253.007 to determine whether any |
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employee of the facility is designated in either registry as having |
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abused, neglected, or exploited a resident or consumer of a |
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facility or an individual receiving services from a facility. |
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SECTION 4. Section 253.001, Health and Safety Code, is |
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amended by amending Subdivisions (1), (2), and (3) and adding |
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Subdivision (3-a) to read as follows: |
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(1) "Commissioner" means the commissioner of aging and |
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disability [human] services. |
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(2) "Department" means the [Texas] Department of Aging |
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and Disability [Human] Services. |
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(3) "Employee" means a person who: |
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(A) works at a facility; |
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(B) is an individual who provides personal care |
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services, active treatment, or any other personal services to a |
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resident or consumer of the facility; and |
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(C) is not licensed by an agency of the state to |
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perform the services the employee performs at the facility or is[;
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and
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[(D) is not] a nurse aide employed by a [nursing] |
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facility. |
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(3-a) "Executive commissioner" means the executive |
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commissioner of the Health and Human Services Commission. |
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SECTION 5. The heading to Section 253.003, Health and |
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Safety Code, is amended to read as follows: |
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Sec. 253.003. DETERMINATION; NOTICE; REPORT TO REGISTRY. |
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SECTION 6. Subsection (a), Section 253.003, Health and |
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Safety Code, is amended to read as follows: |
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(a) If, after an investigation, the department determines |
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that the reportable conduct occurred, the department shall: |
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(1) give to the employee written notice of the |
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department's findings that[. The notice] must include: |
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(A) [(1)] a brief summary of the department's |
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findings; and |
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(B) [(2)] a statement of the person's right to a |
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hearing on the occurrence of the reportable conduct; and |
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(2) immediately record the reportable conduct in the |
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registry in accordance with Section 253.007 with a notation that |
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the finding is pending a final determination. |
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SECTION 7. Section 253.004, Health and Safety Code, is |
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amended by amending Subsection (c) and adding Subsection (d) to |
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read as follows: |
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(c) Based on the findings of fact and conclusions of law and |
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the recommendations of the hearings examiner, the commissioner or |
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the commissioner's designee by order may find that the reportable |
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conduct has occurred. If the commissioner or the commissioner's |
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designee finds that the reportable conduct has occurred, the |
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commissioner or the commissioner's designee shall: |
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(1) issue an order approving the determination; and |
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(2) record the final determination of reportable |
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conduct in the registry under Section 253.007. |
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(d) If the commissioner or the commissioner's designee |
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finds that the reportable conduct has not occurred based on the |
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findings of fact and conclusions of law and the recommendations of |
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the hearings examiner, the commissioner or the commissioner's |
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designee shall: |
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(1) issue an order rejecting the determination; and |
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(2) immediately remove the record of the reportable |
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conduct from the registry maintained under Section 253.007. |
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SECTION 8. Subsections (a), (b), and (d), Section 253.005, |
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Health and Safety Code, are amended to read as follows: |
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(a) The department shall give notice of the order under |
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Section 253.004(c) [253.004] to the employee alleged to have |
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committed the reportable conduct. The notice must include: |
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(1) separate statements of the findings of fact and |
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conclusions of law; |
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(2) a statement of the right of the employee to |
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judicial review of the order; and |
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(3) a statement that the final determination of the |
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reportable conduct has been [will be] recorded in the registry |
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under Section 253.007 and will be retained in the registry if: |
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(A) the employee does not request judicial review |
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of the determination; or |
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(B) the determination is sustained by the court. |
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(b) Not later than the 30th day after the date on which the |
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decision becomes final as provided by Chapter 2001, Government |
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Code, the employee may file a petition for judicial review |
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contesting the finding of the reportable conduct. If the employee |
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does not request judicial review of the determination, the |
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[department shall] record of the final determination of the |
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reportable conduct shall be retained in the registry under Section |
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253.007. |
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(d) If the court sustains the finding of the occurrence of |
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the reportable conduct, the department shall note that the court |
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sustained the final determination of [record] the reportable |
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conduct in the registry under Section 253.007. If the court |
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overturns the finding of the occurrence of the reportable conduct, |
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the department shall immediately remove the record of the |
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reportable conduct from the registry under Section 253.007. |
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SECTION 9. Section 253.006, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 253.006. INFORMAL PROCEEDINGS. The executive |
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commissioner [department] by rule shall adopt procedures governing |
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informal proceedings held in compliance with Section 2001.056, |
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Government Code. |
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SECTION 10. Subsection (a), Section 253.007, Health and |
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Safety Code, is amended to read as follows: |
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(a) The department shall establish an employee misconduct |
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registry. If the department in accordance with this chapter |
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finds that an employee of a facility has committed [commits] |
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reportable conduct, the department shall make a record of the |
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employee's name, the employee's address, the employee's social |
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security number, the name of the facility, the address of the |
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facility, the date the reportable conduct occurred, and a |
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description of the reportable conduct. |
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SECTION 11. Section 253.0075, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY |
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DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY] SERVICES. On |
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receipt of a finding of an employee's reportable conduct by the |
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Department of Family and Protective [and Regulatory] Services under |
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Subchapter I, Chapter 48, Human Resources Code, the department |
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shall record the information in the employee misconduct registry in |
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accordance with Section 253.007. |
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SECTION 12. Section 253.008, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 253.008. VERIFICATION OF EMPLOYABILITY; ANNUAL |
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SEARCH. (a) Before a facility as defined in this chapter or an |
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agency as defined in Section 48.401, Human Resources Code, [or a
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person exempt from licensing under Section 142.003(a)(19)] may hire |
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an employee, the facility or agency [person] shall search the |
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employee misconduct registry under this chapter and the nurse aide |
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registry maintained under Chapter 250 as required by the Omnibus |
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Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) to |
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determine whether the applicant for employment is designated in |
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either registry as having abused, neglected, or exploited a |
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resident or consumer of a facility or agency or an individual |
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receiving services from a facility or agency [from a person exempt
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from licensing under Section 142.003(a)(19)]. |
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(b) A facility or agency [a person exempt from licensing
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under Section 142.003(a)(19)] may not employ a person who is listed |
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in either registry as having abused, neglected, or exploited a |
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resident or consumer of a facility or agency or an individual |
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receiving services from a facility or agency. This subsection does |
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not prohibit a facility or agency from employing or continuing to |
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employ a person whose only record of reportable conduct included in |
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the registry is pending a final determination [from a person exempt
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from licensing under Section 142.003(a)(19)]. |
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(c) In addition to the initial verification of |
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employability, a facility or agency shall annually search the |
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employee misconduct registry and the nurse aide registry maintained |
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under Chapter 250 to determine whether any employee of the facility |
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or agency is designated in either registry as having abused, |
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neglected, or exploited a resident or consumer of a facility or |
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agency or an individual receiving services from a facility or |
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agency. |
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SECTION 13. Section 253.009, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 253.009. NOTIFICATION. (a) Each facility as defined |
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in this chapter and each agency as defined in Section 48.401, Human |
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Resources Code, [and each person exempt from licensing under
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Section 142.003(a)(19)] shall notify its employees in a manner |
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prescribed by the Department of Aging and Disability Services |
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[department]: |
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(1) about the employee misconduct registry; [and] |
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(2) that an employee may not be employed if the |
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employee is listed in the registry after a final determination; and |
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(3) that a facility or agency is not prohibited from |
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employing an employee listed in the registry pending a final |
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determination. |
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(b) The executive commissioner [department] shall adopt |
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rules to implement this section. |
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SECTION 14. Section 48.401, Human Resources Code, is |
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amended to read as follows: |
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Sec. 48.401. DEFINITIONS. In this subchapter: |
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(1) "Agency" means: |
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(A) an entity licensed under Chapter 142, Health |
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and Safety Code; [or] |
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(B) a person exempt from licensing under Section |
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142.003(a)(19), Health and Safety Code; or |
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(C) an entity investigated by the department |
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under Subchapter F or under Section 261.404, Family Code. |
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(2) "Commissioner" means the commissioner of the |
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Department of Family and Protective Services. |
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(3) "Employee" means a person who: |
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(A) works for an agency; |
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(B) provides personal care services, active |
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treatment, or any other personal services to an individual |
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receiving agency services or to an individual who is a child for |
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whom an investigation is authorized under Section 261.404, Family |
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Code; and |
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(C) is not licensed by the state to perform the |
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services the person performs for the agency. |
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(4) [(3)] "Employee misconduct registry" means the |
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employee misconduct registry established under Chapter 253, Health |
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and Safety Code. |
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[(4)
"Executive director" means the executive
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director of the Department of Protective and Regulatory Services.] |
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(5) "Reportable conduct" includes: |
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(A) abuse or neglect that causes or may cause |
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death or harm to an individual receiving agency services; |
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(B) sexual abuse of an individual receiving |
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agency services; |
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(C) financial exploitation of an individual |
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receiving agency services in an amount of $25 or more; and |
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(D) emotional, verbal, or psychological abuse |
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that causes harm to an individual receiving agency services. |
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SECTION 15. Section 48.403, Human Resources Code, is |
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amended to read as follows: |
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Sec. 48.403. FINDING. After an investigation and following |
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the procedures of this subchapter, if the department confirms or |
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validates the occurrence of reportable conduct by an employee, the |
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department shall immediately forward the finding to the [Texas] |
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Department of Aging and Disability [Human] Services to record the |
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reportable conduct in the employee misconduct registry under |
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Section 253.007, Health and Safety Code. |
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SECTION 16. Subsection (c), Section 48.404, Human Resources |
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Code, is amended to read as follows: |
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(c) If the employee notified of the violation accepts the |
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finding of the department or fails to timely respond to the notice, |
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the commissioner [executive director] or the commissioner's |
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[executive director's] designee shall issue an order approving the |
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finding and ordering that the department's findings be forwarded to |
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the [Texas] Department of Aging and Disability [Human] Services to |
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be recorded in the employee misconduct registry under Section |
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253.007, Health and Safety Code. |
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SECTION 17. Subsections (b) and (c), Section 48.405, Human |
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Resources Code, are amended to read as follows: |
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(b) The hearings examiner shall make findings of fact and |
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conclusions of law and shall promptly issue to the commissioner |
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[executive director] or the commissioner's [executive director's] |
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designee a proposal for decision as to the occurrence of the |
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reportable conduct. |
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(c) Based on the findings of fact and conclusions of law and |
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the recommendations of the hearings examiner, the commissioner |
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[executive director] or the commissioner's [executive director's] |
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designee by order may find that the reportable conduct has |
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occurred. If the commissioner [executive director] or the |
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commissioner's [executive director's] designee finds that |
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reportable conduct has occurred, the commissioner [executive
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director] or the commissioner's [executive director's] designee |
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shall issue an order approving the finding. |
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SECTION 18. Subsections (b) and (d), Section 48.406, Human |
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Resources Code, are amended to read as follows: |
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(b) Not later than the 30th day after the date the decision |
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becomes final as provided by Chapter 2001, Government Code, the |
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employee may file a petition for judicial review contesting the |
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finding of the reportable conduct. If the employee does not request |
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judicial review of the finding, the department shall send a record |
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of the department's findings to the [Texas] Department of Aging and |
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Disability [Human] Services to record in the employee misconduct |
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registry under Section 253.007, Health and Safety Code. |
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(d) If the court sustains the finding of the occurrence of |
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the reportable conduct, the department shall forward the finding of |
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reportable conduct to the [Texas] Department of Aging and |
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Disability [Human] Services to record the reportable conduct in the |
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employee misconduct registry under Section 253.007, Health and |
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Safety Code. |
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SECTION 19. Section 48.407, Human Resources Code, is |
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amended to read as follows: |
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Sec. 48.407. INFORMAL PROCEEDINGS. The executive |
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commissioner [department] by rule shall adopt procedures governing |
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informal proceedings held in compliance with Section 2001.056, |
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Government Code. |
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SECTION 20. Section 48.408, Human Resources Code, is |
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amended to read as follows: |
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Sec. 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT |
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REGISTRY. (a) When the department forwards a finding of |
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reportable conduct to the [Texas] Department of Aging and |
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Disability [Human] Services for recording in the employee |
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misconduct registry, the department shall provide the employee's |
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name, the employee's address, the employee's social security |
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number, if available, the name of the agency, the address of the |
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agency, the date the reportable conduct occurred, and a description |
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of the reportable conduct. |
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(b) If a governmental agency of another state or the federal |
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government finds that an employee has committed an act that |
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constitutes reportable conduct, the department may send to the |
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[Texas] Department of Aging and Disability [Human] Services, for |
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recording in the employee misconduct registry, the employee's name, |
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the employee's address, the employee's social security number, if |
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available, the name of the agency, the address of the agency, the |
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date of the act, and a description of the act. |
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SECTION 21. Not later than September 1, 2010, the executive |
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commissioner of the Health and Human Services Commission shall |
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adopt the rules necessary to implement the changes in law made by |
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this Act. The changes in law made by this Act apply only to |
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reportable conduct that occurs on or after September 1, 2010. |
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Reportable conduct that occurs before that date is governed by the |
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law in effect immediately before the effective date of this Act, and |
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that law is continued in effect for that purpose. |
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SECTION 22. This Act does not make an appropriation. A |
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provision in this Act that creates a new governmental program, |
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creates a new entitlement, or imposes a new duty on a governmental |
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entity is not mandatory during a fiscal period for which the |
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legislature has not made a specific appropriation to implement the |
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provision. |
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SECTION 23. This Act takes effect immediately if it |
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receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
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effect, this Act takes effect September 1, 2009. |