81R2733 YDB-D

By: Nelson S.B. No. 785

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. Section 242.042(a), Health and Safety Code, is amended to read as follows:

(a) Each institution shall prominently and conspicuously post for display in a public area of the institution that is readily available to residents, employees, and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by the department that specifies complaint procedures established under this chapter or rules adopted under this chapter and that specifies how complaints may be registered with the department;

(3) a notice in a form prescribed by the department stating that licensing inspection reports and other related reports which show deficiencies cited by the department are available at the institution for public inspection and providing the department's toll-free telephone number that may be used to obtain information concerning the institution;

(4) a concise summary of the most recent inspection report relating to the institution;

(5) notice that the department can provide summary reports relating to the quality of care, recent investigations, litigation, and other aspects of the operation of the institution;

(6) notice that the Texas Board of Nursing Facility Administrators can provide information about the nursing facility administrator;

(7) any notice or written statement required to be posted under Section 242.072(c);

(8) notice that informational materials relating to the compliance history of the institution are available for inspection at a location in the institution specified by the sign; [and]

(9) notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by Sections 242.133 and 242.1335; and

(10) a copy of the registration issued by the department for each certified nurse aide employed by or working at the facility.

SECTION 2. Section 253.001, Health and Safety Code, is amended to read as follows:

Sec. 253.001. DEFINITIONS. In this chapter:

(1) "Commissioner" means the commissioner of aging and disability [human] services or the commissioner of the health and human services agency that regulates a facility, as applicable.

(2) "Department" means the health and human services agency that regulates, operates, contracts with, or oversees a facility, as applicable [Texas Department of 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.

(4) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(5) "Facility" means:

(A) a facility licensed by the Department of Aging and Disability Services, including a nursing home, custodial care home, or other institution licensed under Chapter 242 or an assisted living facility licensed under Chapter 247 [department];

(B) an adult foster care provider that contracts with the Department of Aging and Disability Services [department]; [or]

(C) a home and community support services agency licensed [by the department] under Chapter 142;

(D) an adult day care facility licensed under Chapter 103, Human Resources Code;

(E) a facility for persons with mental retardation licensed under Chapter 252;

(F) a facility that provides mental health services and that is operated by or contracts with the Department of State Health Services;

(G) a local mental health or mental retardation authority designated under Section 533.035;

(H) a person exempt from licensing under Section 142.003(a)(19);

(I) a state school as defined by Section 531.002; or

(J) a state hospital.

(6) "Health and human services agency" has the meaning assigned by Section 531.001, Government Code.

(7) [(5)] "Reportable conduct" includes:

(A) abuse or neglect that causes or may cause death or harm to a resident or consumer of a facility;

(B) sexual abuse of a resident or consumer of a facility;

(C) financial exploitation of a resident or consumer of a facility in an amount of $25 or more; and

(D) emotional, verbal, or psychological abuse that causes harm to a resident or consumer of a facility.

SECTION 3. Section 253.002, Health and Safety Code, is amended to read as follows:

Sec. 253.002. INVESTIGATION BY DEPARTMENT. If the department that regulates a facility receives a report that an employee of the [a] facility committed reportable conduct, the department shall investigate the report to determine whether the employee has committed the reportable conduct.

SECTION 4. The heading to Section 253.003, Health and Safety Code, is amended to read as follows:

Sec. 253.003. DETERMINATION; NOTICE; REPORT TO REGISTRY.

SECTION 5. Section 253.003, Health and Safety Code, is amended by amending Subsections (a) and (c) and adding Subsection (d) to read as follows:

(a) If, after an investigation, the department determines that the reportable conduct occurred, the department shall:

(1) give written notice of the department's findings that [. The notice] must include:

(A) [(1)] a brief summary of the department's findings; and

(B) [(2)] a statement of the person's right to a hearing on the occurrence of the reportable conduct; and

(2) immediately forward a record of the reportable conduct to the Department of Aging and Disability Services for inclusion in the registry under Section 253.007 with a notation that the finding is pending a final determination.

(c) If the employee notified of the violation accepts the determination of the department or fails to timely respond to the notice, the commissioner or the commissioner's designee shall:

(1) issue an order approving the determination and ordering that the reportable conduct be recorded in the registry under Section 253.007; and

(2) immediately forward the record of the reportable conduct to the Department of Aging and Disability Services for inclusion of the final determination in the registry under Section 253.007.

(d) Notwithstanding any other provision of this subchapter, a department that regulates a facility and that is subject to Subchapter I, Chapter 48, Human Resources Code, shall comply with the procedures established under that subchapter in submitting a record of reportable conduct to the Department of Aging and Disability Services.

SECTION 6. Section 253.004, Health and Safety Code, is amended by amending Subsection (c) and adding Subsection (d) to read as follows:

(c) Based on the findings of fact and conclusions of law and the recommendations of the hearings examiner, the commissioner or the commissioner's designee by order may find that the reportable conduct has occurred. If the commissioner or the commissioner's designee finds that the reportable conduct has occurred, the commissioner or the commissioner's designee shall:

(1) issue an order approving the determination; and

(2) forward the record of reportable conduct to the Department of Aging and Disability Services for inclusion of the final determination in the registry under Section 253.007.

(d) If the commissioner or the commissioner's designee finds that the reportable conduct has not occurred based on the findings of fact and conclusions of law and the recommendations of the hearings examiner, the commissioner or the commissioner's designee shall:

(1) issue an order rejecting the determination; and

(2) immediately notify the Department of Aging and Disability Services to remove the record of the reportable conduct from the registry maintained under Section 253.007.

SECTION 7. Sections 253.005(a), (b), and (d), Health and Safety Code, are amended to read as follows:

(a) The department that regulates a facility shall give notice of the order under Section 253.004 to the employee alleged to have committed the reportable conduct. The notice must include:

(1) separate statements of the findings of fact and conclusions of law;

(2) a statement of the right of the employee to judicial review of the order; and

(3) a statement that the final determination of the reportable conduct has been [will be] recorded in the registry under Section 253.007 and will be retained in the registry if:

(A) the employee does not request judicial review of the determination; or

(B) the determination is sustained by the court.

(b) Not later than the 30th day after the date on which 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 determination, the [department shall] record of the final determination of the reportable conduct shall be retained in the registry under Section 253.007.

(d) If the court sustains the finding of the occurrence of the reportable conduct, the department that regulates the facility shall notify the Department of Aging and Disability Services, and the Department of Aging and Disability Services shall note that the court sustained the final determination of [record] the reportable conduct in the registry under Section 253.007. If the court overturns the finding of the occurrence of the reportable conduct, the department that regulates the facility shall immediately notify the Department of Aging and Disability Services, and the Department of Aging and Disability Services shall immediately remove the record of the reportable conduct from the registry under Section 253.007.

SECTION 8. 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 9. Section 253.007, Health and Safety Code, is amended to read as follows:

Sec. 253.007. EMPLOYEE MISCONDUCT REGISTRY. (a) The Department of Aging and Disability Services shall establish an employee misconduct registry.

(b) If the department that regulates a facility finds after an investigation and notification to the employee of the determination and of the right to a hearing 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. The department shall immediately forward the finding and record to the Department of Aging and Disability Services, and the Department of Aging and Disability Services shall immediately include the finding and record in the employee misconduct registry with a notation that the finding is pending a final determination.

(c) If the department that regulates a facility makes a final determination after an opportunity for a hearing that an employee of a facility has committed reportable conduct, the department shall immediately forward the final determination and record to the Department of Aging and Disability Services.

(d) If the Department of Aging and Disability Services receives notification of a final determination from a department that regulates a facility or of action of a court under Section 253.004, the Department of Aging and Disability Services, as appropriate, shall immediately:

(1) include in the registry information related to the final determination of reportable misconduct; or

(2) remove from the registry any notation of employee misconduct if it is finally determined by the department that regulates a facility or a court that reportable conduct did not occur.

(e) [(b)] If an agency of another state or the federal government finds that an employee has committed an act that constitutes reportable conduct, the Department of Aging and Disability Services [department] may make a record in the employee misconduct registry 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 of the act, and a description of the act.

(f) [(c)] The Department of Aging and Disability Services [department] shall make the registry available to the public.

SECTION 10. Section 253.0075, Health and Safety Code, is amended to read as follows:

Sec. 253.0075. RECORDING CERTAIN REPORTABLE CONDUCT [REPORTED BY DEPARTMENT OF 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, or Subchapter B, Chapter 261, Family Code, after compliance with the procedures established under Subchapter I, Chapter 48, Human Resources Code, the Department of Aging and Disability Services [department] shall record the information in the employee misconduct registry in accordance with Section 253.007.

SECTION 11. 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 [or a person exempt from licensing under Section 142.003(a)(19)] may hire an employee, the facility [or 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 an individual receiving services from a facility [or from a person exempt from licensing under Section 142.003(a)(19)].

(b) A facility [or 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 an individual receiving services from a facility. This subsection does not prohibit a facility from employing a person whose only record of reportable conduct included in the registry is pending a final determination [or from a person exempt from licensing under Section 142.003(a)(19)].

(c) In addition to the initial verification of employability, a facility shall annually search the employee misconduct registry and the nurse aide registry maintained under Chapter 250 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.

SECTION 12. Section 253.009, Health and Safety Code, is amended to read as follows:

Sec. 253.009. NOTIFICATION. (a) Each facility [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 after a final determination; and

(3) that an employee listed in the registry pending a final determination may continue to be employed.

(b) The executive commissioner [department] shall adopt rules to implement this section.

SECTION 13. Section 253.010, Health and Safety Code, is amended to read as follows:

Sec. 253.010. REMOVAL FROM REGISTRY. The Department of Aging and Disability Services [department] may remove a person from the employee misconduct registry if, after receiving a written request from the person, the department determines that the person does not meet the requirements for inclusion in the employee misconduct registry.

SECTION 14. 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 15. Section 48.404(c), 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 executive director or the 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 16. Sections 48.406(b) and (d), 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 17. 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 18. Subchapter B, Chapter 261, Family Code, is amended by adding Section 261.1035 to read as follows:

Sec. 261.1035. RECORD FILED WITH DEPARTMENT OF AGING AND DISABILITY SERVICES. (a) In this section:

(1) "Employee" has the meaning assigned by Section 253.001, Health and Safety Code.

(2) "Facility" has the meaning assigned by Section 253.001, Health and Safety Code.

(3) "Reportable conduct" has the meaning assigned by Section 253.001, Health and Safety Code.

(b) If an investigation under this chapter results in a finding by a regulatory agency that regulates, contracts with, operates, or oversees a facility that an employee of the facility has committed reportable conduct, the agency shall comply with the procedures established under Subchapter I, Chapter 48, Human Resources Code, or Chapter 253, Health and Safety Code, as applicable, to report the reportable conduct and include the information in the employee misconduct registry under Chapter 253, Health and Safety Code.

SECTION 19. The changes in law made by this Act apply only to reportable conduct that occurs on or after the effective date of this Act.

SECTION 20. As soon as practicable after the effective date of this Act, 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.

SECTION 21. 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.