S.B. No. 806

AN ACT

relating to certain employee misconduct registries and to the imposition of a disciplinary action on a licensed nursing facility administrator; providing a penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 242.002, Health and Safety Code, is amended by amending Subdivision (4) and adding Subdivision (5-a) to read as follows:

(4) "Department" means the [Texas] Department of Aging and Disability [Human] Services.

(5-a) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

SECTION 2. Subsections (a), (c), (d), and (e), Section 242.313, Health and Safety Code, as added by Section 1.01, Chapter 1280 (S.B. 84), Acts of the 75th Legislature, Regular Session, 1997, are amended to read as follows:

(a) The department may revoke, suspend, or refuse to renew a nursing facility administrator's license, assess an administrative penalty, issue a written reprimand, require participation in continuing education, or place an administrator on probation, after due notice and the opportunity for a hearing, on proof of any of the following grounds:

(1) the license holder has wilfully or repeatedly violated a provision of this subchapter or a rule adopted under this subchapter;

(2) the license holder has wilfully or repeatedly acted in a manner inconsistent with the health and safety of the residents of a facility of which the license holder is an administrator;

(3) the license holder obtained or attempted to obtain a license through misrepresentation or deceit or by making a material misstatement of fact on a license application;

(4) the license holder's use of alcohol or drugs creates a hazard to the residents of a facility;

(5) a judgment of a court of competent jurisdiction finds that the license holder is mentally incapacitated;

(6) the license holder has been convicted in a court of competent jurisdiction of a misdemeanor or felony involving moral turpitude; [or]

(7) the license holder has been convicted in a court of competent jurisdiction of an offense listed in Section 250.006; or

(8) the license holder has been negligent or incompetent in the license holder's duties as a nursing facility administrator.

(c) A license holder is entitled to a hearing in accordance with rules adopted [promulgated] by the executive commissioner [board] before a sanction is imposed under this section.

(d) The executive commissioner [board] by rule shall adopt a broad schedule of sanctions for violations under this subchapter. The department shall use the schedule for any sanction imposed [as the result of a hearing conducted] in accordance with the rules.

(e) The executive commissioner [department] shall by rule establish criteria to determine whether deficiencies from a facility's survey warrant action against an administrator. The criteria shall include a determination of whether the survey indicates substandard quality of care related to an act or failure to act by the administrator, and whether a deficiency is related to an act or failure to act by the administrator. If a deficiency on which a disciplinary action against an administrator is initiated or completed is not substantiated, the disciplinary action shall be reversed.

SECTION 3. Subsections (c) and (d), Section 242.316, Health and Safety Code, as added by Section 1.01, Chapter 1280 (S.B. 84), Acts of the 75th Legislature, Regular Session, 1997, are amended to read as follows:

(c) If the person accepts the determination and the penalty recommended by the department, or if the person fails to timely respond to the notice, the department shall impose the recommended penalty.

(d) If the person requests a hearing [or fails to respond timely to the notice], the department shall set a hearing and give notice of the hearing to the person. The hearing shall be held in accordance with the [department's] rules on contested case hearings adopted by the executive commissioner.

SECTION 4. Subsections (a) and (d), Section 242.318, Health and Safety Code, as added by Section 2.01, Chapter 1280 (S.B. 84), Acts of the 75th Legislature, Regular Session, 1997, are amended to read as follows:

(a) The board may revoke, suspend, or refuse to renew a nursing facility administrator's license, assess an administrative penalty, issue a written reprimand, require participation in continuing education, or place an administrator on probation, after due notice and the opportunity for a hearing, on proof of any of the following grounds:

(1) the license holder has wilfully or repeatedly violated a provision of this subchapter or a rule adopted under this subchapter;

(2) the license holder has wilfully or repeatedly acted in a manner inconsistent with the health and safety of the residents of a facility of which the license holder is an administrator;

(3) the license holder obtained or attempted to obtain a license through misrepresentation or deceit or by making a material misstatement of fact on a license application;

(4) the license holder's use of alcohol or drugs creates a hazard to the residents of a facility;

(5) a judgment of a court of competent jurisdiction finds that the license holder is mentally incapacitated;

(6) the license holder has been convicted in a court of competent jurisdiction of a misdemeanor or felony involving moral turpitude; [or]

(7) the license holder has been convicted in a court of competent jurisdiction of an offense listed in Section 250.006; or

(8) the license holder has been negligent or incompetent in the license holder's duties as a nursing facility administrator.

(d) The board by rule shall adopt a broad schedule of sanctions for violations under this subchapter. The board shall use the schedule for any sanction imposed [as the result of a hearing conducted] in accordance with the rules.

SECTION 5. Subsections (c) and (d), Section 242.321, Health and Safety Code, as added by Section 2.01, Chapter 1280 (S.B. 84), Acts of the 75th Legislature, Regular Session, 1997, are amended to read as follows:

(c) If the person accepts the determination and the penalty recommended by the department, or if the person fails to timely respond to the notice, the department shall impose the recommended penalty.

(d) If the person requests a hearing [or fails to respond timely to the notice], the department shall set a hearing and give notice of the hearing to the person. The hearing shall be held in accordance with the [department's] rules on contested case hearings adopted by the executive commissioner.

SECTION 6. 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 7. 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 8. 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 9. 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 10. 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 11. 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 12. 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 13. 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 14. 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 15. 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 16. 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 17. 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 18. 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 19. 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 20. 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 21. 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 22. The change in law made by Sections 1 through 5 of this Act applies only to a disciplinary action imposed on or after the effective date of this Act. A disciplinary action imposed before that date is governed by the law in effect at the time the action was initiated, and the former law is continued in effect for that purpose.

SECTION 23. 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 related to the employee misconduct registry, the nurse aide registry, and records contained in those registries. 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 24. 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.

______________________________ ______________________________

President of the Senate Speaker of the House

I hereby certify that S.B. No. 806 passed the Senate on April 2, 2009, by the following vote: Yeas 31, Nays 0; and that the Senate concurred in House amendment on May 29, 2009, by the following vote: Yeas 31, Nays 0.

______________________________ Secretary of the Senate

I hereby certify that S.B. No. 806 passed the House, with amendment, on May 27, 2009, by the following vote: Yeas 148, Nays 0, one present not voting.

______________________________ Chief Clerk of the House

Approved:

______________________________

Date

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Governor