|
|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the employee misconduct registry and employee |
|
certification posting requirements for certain facilities. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. The heading to Section 250.003, Health and |
|
Safety Code, is amended to read as follows: |
|
Sec. 250.003. VERIFICATION OF EMPLOYABILITY; ANNUAL |
|
SEARCH; DISCHARGE. |
|
SECTION 2. Section 250.003, Health and Safety Code, is |
|
amended by amending Subsection (a) and adding Subsections (a-1) and |
|
(d) to read as follows: |
|
(a) A facility may not employ an applicant: |
|
(1) [a person] if the facility determines, as a result |
|
of a criminal history check, that the applicant [a person] has been |
|
convicted of an offense listed in this chapter that bars employment |
|
or that a conviction is a contraindication to employment with the |
|
consumers the facility serves; |
|
(2) [, and] if the applicant is a nurse aide, until the |
|
facility further verifies that the applicant is listed in the nurse |
|
aide registry; and |
|
(3) until the facility verifies that the applicant is |
|
not designated in the registry maintained under this chapter or in |
|
the employee misconduct registry maintained under Section 253.007 |
|
as having a finding entered into the registry concerning abuse, |
|
neglect, or mistreatment of a consumer of a facility, or |
|
misappropriation of a consumer's property. |
|
(a-1) Except for an applicant for employment at or an |
|
employee of a facility licensed under Chapter 242 or 247, a person |
|
licensed under another law of this state is exempt from the |
|
requirements of this chapter. |
|
(d) In addition to the initial verification of |
|
employability, a facility shall: |
|
(1) annually search the nurse aide registry maintained |
|
under this chapter and the employee misconduct registry maintained |
|
under Section 253.007 to determine whether any employee of the |
|
facility is designated in either registry as having abused, |
|
neglected, or exploited a resident or consumer of a facility or an |
|
individual receiving services from a facility; and |
|
(2) maintain in each employee's personnel file a copy |
|
of the results of the search conducted under Subdivision (1). |
|
SECTION 3. Section 253.001, Health and Safety Code, is |
|
amended by amending Subdivisions (1), (2), and (3) and adding |
|
Subdivision (3-a) to read as follows: |
|
(1) "Commissioner" means the commissioner of aging and |
|
disability [human] services. |
|
(2) "Department" means the [Texas] Department of Aging |
|
and Disability [Human] Services. |
|
(3) "Employee" means a person who: |
|
(A) works at a facility; |
|
(B) is an individual who provides personal care |
|
services, active treatment, or any other personal services to a |
|
resident or consumer of the facility; and |
|
(C) is not licensed by an agency of the state to |
|
perform the services the employee performs at the facility or is[;
|
|
and
|
|
[(D) is not] a nurse aide employed by a [nursing] |
|
facility. |
|
(3-a) "Executive commissioner" means the executive |
|
commissioner of the Health and Human Services Commission. |
|
SECTION 4. Chapter 253, Health and Safety Code, is amended |
|
by adding Section 253.0055 to read as follows: |
|
Sec. 253.0055. REMOVAL OF NURSE AIDE FINDING. If a finding |
|
of reportable conduct is the basis for an entry in the nurse aide |
|
registry maintained under Chapter 250, and the entry is |
|
subsequently removed from the nurse aide registry, the commissioner |
|
or the commissioner's designee shall immediately remove the record |
|
of reportable conduct from the employee misconduct registry |
|
maintained under Section 253.007. |
|
SECTION 5. Section 253.006, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 253.006. INFORMAL PROCEEDINGS. The executive |
|
commissioner [department] by rule shall adopt procedures governing |
|
informal proceedings held in compliance with Section 2001.056, |
|
Government Code. |
|
SECTION 6. Subsection (a), Section 253.007, Health and |
|
Safety Code, is amended to read as follows: |
|
(a) The department shall establish an employee misconduct |
|
registry. If the department in accordance with this chapter finds |
|
that an employee of a facility has committed [commits] reportable |
|
conduct, the department shall make a record of the employee's name, |
|
the employee's address, the employee's social security number, the |
|
name of the facility, the address of the facility, the date the |
|
reportable conduct occurred, and a description of the reportable |
|
conduct. |
|
SECTION 7. Section 253.0075, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY |
|
DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY] SERVICES. On |
|
receipt of a finding of an employee's reportable conduct by the |
|
Department of Family and Protective [and Regulatory] Services under |
|
Subchapter I, Chapter 48, Human Resources Code, the department |
|
shall record the information in the employee misconduct registry in |
|
accordance with Section 253.007. |
|
SECTION 8. Section 253.008, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 253.008. VERIFICATION OF EMPLOYABILITY; ANNUAL |
|
SEARCH. (a) Before a facility as defined in this chapter or an |
|
agency as defined in Section 48.401, Human Resources Code, [or a
|
|
person exempt from licensing under Section 142.003(a)(19)] may hire |
|
an employee, the facility or agency [person] shall search the |
|
employee misconduct registry under this chapter and the nurse aide |
|
registry maintained under Chapter 250 as required by the Omnibus |
|
Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) to |
|
determine whether the applicant for employment is designated in |
|
either registry as having abused, neglected, or exploited a |
|
resident or consumer of a facility or agency or an individual |
|
receiving services from a facility or agency [from a person exempt
|
|
from licensing under Section 142.003(a)(19)]. |
|
(b) A facility or agency [a person exempt from licensing
|
|
under Section 142.003(a)(19)] may not employ a person who is listed |
|
in either registry as having abused, neglected, or exploited a |
|
resident or consumer of a facility or agency or an individual |
|
receiving services from a facility or agency [from a person exempt
|
|
from licensing under Section 142.003(a)(19)]. |
|
(c) In addition to the initial verification of |
|
employability, a facility or agency shall: |
|
(1) annually search the employee misconduct registry |
|
and the nurse aide registry maintained under Chapter 250 to |
|
determine whether any employee of the facility or agency is |
|
designated in either registry as having abused, neglected, or |
|
exploited a resident or consumer of a facility or agency or an |
|
individual receiving services from a facility or agency; and |
|
(2) maintain in each employee's personnel file a copy |
|
of the results of the search conducted under Subdivision (1). |
|
SECTION 9. Section 253.009, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 253.009. NOTIFICATION. (a) Each facility as defined |
|
in this chapter and each agency as defined in Section 48.401, Human |
|
Resources Code, [and each person exempt from licensing under
|
|
Section 142.003(a)(19)] shall notify its employees in a manner |
|
prescribed by the Department of Aging and Disability Services |
|
[department]: |
|
(1) about the employee misconduct registry; and |
|
(2) that an employee may not be employed if the |
|
employee is listed in the registry. |
|
(b) The executive commissioner [department] shall adopt |
|
rules to implement this section. |
|
SECTION 10. Section 48.401, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.401. DEFINITIONS. In this subchapter: |
|
(1) "Agency" means: |
|
(A) an entity licensed under Chapter 142, Health |
|
and Safety Code; [or] |
|
(B) a person exempt from licensing under Section |
|
142.003(a)(19), Health and Safety Code; or |
|
(C) an entity investigated by the department |
|
under Subchapter F or under Section 261.404, Family Code. |
|
(2) "Commissioner" means the commissioner of the |
|
Department of Family and Protective Services. |
|
(3) "Employee" means a person who: |
|
(A) works for an agency; |
|
(B) provides personal care services, active |
|
treatment, or any other personal services to an individual |
|
receiving agency services or to an individual who is a child for |
|
whom an investigation is authorized under Section 261.404, Family |
|
Code; and |
|
(C) is not licensed by the state to perform the |
|
services the person performs for the agency. |
|
(4) [(3)] "Employee misconduct registry" means the |
|
employee misconduct registry established under Chapter 253, Health |
|
and Safety Code. |
|
[(4)
"Executive director" means the executive
|
|
director of the Department of Protective and Regulatory Services.] |
|
(5) "Reportable conduct" includes: |
|
(A) abuse or neglect that causes or may cause |
|
death or harm to an individual receiving agency services; |
|
(B) sexual abuse of an individual receiving |
|
agency services; |
|
(C) financial exploitation of an individual |
|
receiving agency services in an amount of $25 or more; and |
|
(D) emotional, verbal, or psychological abuse |
|
that causes harm to an individual receiving agency services. |
|
SECTION 11. Section 48.403, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.403. FINDING. After an investigation and following |
|
the procedures of this subchapter, if the department confirms or |
|
validates the occurrence of reportable conduct by an employee, the |
|
department shall immediately forward the finding to the [Texas] |
|
Department of Aging and Disability [Human] Services to record the |
|
reportable conduct in the employee misconduct registry under |
|
Section 253.007, Health and Safety Code. |
|
SECTION 12. Subsection (c), Section 48.404, Human Resources |
|
Code, is amended to read as follows: |
|
(c) If the employee notified of the violation accepts the |
|
finding of the department or fails to timely respond to the notice, |
|
the commissioner [executive director] or the commissioner's |
|
[executive director's] designee shall issue an order approving the |
|
finding and ordering that the department's findings be forwarded to |
|
the [Texas] Department of Aging and Disability [Human] Services to |
|
be recorded in the employee misconduct registry under Section |
|
253.007, Health and Safety Code. |
|
SECTION 13. Section 48.405, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.405. HEARING; ORDER. (a) If the employee |
|
requests a hearing, the department or its designee shall: |
|
(1) set a hearing; |
|
(2) give written notice of the hearing to the |
|
employee; and |
|
(3) designate a hearings examiner to conduct the |
|
hearing. |
|
(b) The hearings examiner shall make findings of fact and |
|
conclusions of law and shall promptly issue to the commissioner |
|
[executive director] or the commissioner's [executive director's] |
|
designee a proposal for decision as to the occurrence of the |
|
reportable conduct. |
|
(c) Based on the findings of fact and conclusions of law and |
|
the recommendations of the hearings examiner, the commissioner |
|
[executive director] or the commissioner's [executive director's] |
|
designee by order may find that the reportable conduct has |
|
occurred. If the commissioner [executive director] or the |
|
commissioner's [executive director's] designee finds that |
|
reportable conduct has occurred, the commissioner [executive
|
|
director] or the commissioner's [executive director's] designee |
|
shall issue an order approving the finding. |
|
SECTION 14. Subsections (b) and (d), Section 48.406, Human |
|
Resources Code, are amended to read as follows: |
|
(b) Not later than the 30th day after the date the decision |
|
becomes final as provided by Chapter 2001, Government Code, the |
|
employee may file a petition for judicial review contesting the |
|
finding of the reportable conduct. If the employee does not request |
|
judicial review of the finding, the department shall send a record |
|
of the department's findings to the [Texas] Department of Aging and |
|
Disability [Human] Services to record in the employee misconduct |
|
registry under Section 253.007, Health and Safety Code. |
|
(d) If the court sustains the finding of the occurrence of |
|
the reportable conduct, the department shall forward the finding of |
|
reportable conduct to the [Texas] Department of Aging and |
|
Disability [Human] Services to record the reportable conduct in the |
|
employee misconduct registry under Section 253.007, Health and |
|
Safety Code. |
|
SECTION 15. Section 48.407, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.407. INFORMAL PROCEEDINGS. The executive |
|
commissioner [department] by rule shall adopt procedures governing |
|
informal proceedings held in compliance with Section 2001.056, |
|
Government Code. |
|
SECTION 16. Section 48.408, Human Resources Code, is |
|
amended to read as follows: |
|
Sec. 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT |
|
REGISTRY. (a) When the department forwards a finding of |
|
reportable conduct to the [Texas] Department of Aging and |
|
Disability [Human] Services for recording in the employee |
|
misconduct registry, the department shall provide the employee's |
|
name, the employee's address, the employee's social security |
|
number, if available, the name of the agency, the address of the |
|
agency, the date the reportable conduct occurred, and a description |
|
of the reportable conduct. |
|
(b) If a governmental agency of another state or the federal |
|
government finds that an employee has committed an act that |
|
constitutes reportable conduct, the department may send to the |
|
[Texas] Department of Aging and Disability [Human] Services, for |
|
recording in the employee misconduct registry, the employee's name, |
|
the employee's address, the employee's social security number, if |
|
available, the name of the agency, the address of the agency, the |
|
date of the act, and a description of the act. |
|
SECTION 17. Not later than September 1, 2010, the executive |
|
commissioner of the Health and Human Services Commission shall |
|
adopt the rules necessary to implement the changes in law made by |
|
this Act. The changes in law made by this Act apply only to |
|
reportable conduct that occurs on or after September 1, 2010. |
|
Reportable conduct that occurs before that date is governed by the |
|
law in effect immediately before the effective date of this Act, and |
|
that law is continued in effect for that purpose. |
|
SECTION 18. This Act does not make an appropriation. A |
|
provision in this Act that creates a new governmental program, |
|
creates a new entitlement, or imposes a new duty on a governmental |
|
entity is not mandatory during a fiscal period for which the |
|
legislature has not made a specific appropriation to implement the |
|
provision. |
|
SECTION 19. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2009. |