83R1519 KFF-D

By: Zaffirini S.B. No. 419

A BILL TO BE ENTITLED

AN ACT

relating to the creation of a central database for and health and human services agency investigations of alleged abuse, neglect, and exploitation violations and rights violations at certain facilities operated in this state.

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

SECTION 1. Subchapter A, Chapter 531, Government Code, is amended by adding Section 531.0142 to read as follows:

Sec. 531.0142. CENTRAL DATABASE OF REPORTABLE MISCONDUCT AND RELATED INVESTIGATIONS. (a) In this section:

(1) "Institution" has the meaning assigned by Section 242.002, Health and Safety Code.

(2) "Reportable conduct" has the meaning assigned by Section 253.001, Health and Safety Code. For purposes of this section, the term includes rights violations.

(b) The commission, in consultation and cooperation with the other health and human services agencies, shall develop and maintain an electronic database to collect and analyze information regarding reports received and investigations conducted by the agencies relating to allegations of reportable conduct committed or alleged to have been committed by employees against a resident or client of:

(1) a state-operated facility under the jurisdiction of a health and human services agency, including a:

(A) state hospital;

(B) state supported living center; and

(C) state-operated intermediate care facility;

(2) an institution or other facility that provides services to recipients under the Medicaid program, including home and community-based services under a Section 1915(c) waiver program; or

(3) an institution or other facility that otherwise reports to the commission or another health and human services agency incidents of reportable conduct.

(c) The database required under Subsection (b) must:

(1) facilitate the entry of required information and the sharing of information between the health and human services agencies;

(2) contain the following details regarding an incident of reportable conduct:

(A) the name of the employee alleged to have committed the reportable conduct;

(B) the employee's address;

(C) the employee's social security number;

(D) the name and address of the employing institution or facility;

(E) the date the reportable conduct occurred; and

(F) a description of the reportable conduct; and

(3) allow health and human services agencies to track past allegations of reportable conduct made against a particular employee to determine whether a pattern of employee behavior exists that might warrant further investigation.

(d) The commission and the other health and human services agencies may modify, expand, or consolidate existing databases and registries maintained by the agencies for purposes of creating the database required under Subsection (b), including:

(1) the employee misconduct registry maintained under Chapter 253, Health and Safety Code;

(2) a designation in the nurse aide registry maintained under Chapter 250, Health and Safety Code, that an employee committed an act of reportable conduct;

(3) the central registry of reported cases maintained under Chapter 260A, Health and Safety Code; and

(4) the database maintained under Section 161.077, Human Resources Code.

(e) The commission or another health and human services agency may not release or distribute information in the database created under this section that:

(1) is in a form that contains personally identifiable information related to the alleged victim of reportable conduct or a resident or client of a state-operated facility, institution, or other facility;

(2) is privileged under Section 250.007, Health and Safety Code, that may not be released under Section 161.077, Human Resources Code, or that is privileged or confidential under other law;

(3) relates to reportable conduct for purposes of this chapter but with respect to which there has not been a finding that the employee has committed reportable conduct in accordance with Chapter 253, Health and Safety Code, or Chapter 48, Human Resources Code; or

(4) has been removed from a registry or database described by Subsection (d).

(f) The executive commissioner shall adopt rules necessary to implement this section.

SECTION 2. Section 253.001(3), Health and Safety Code, is amended to read as follows:

(3) "Employee" means a person, including a physician or nurse, who:

(A) works at a facility; and

(B) is an individual who provides personal or health care services, active treatment, or any other personal or health care 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 a nurse aide employed by a facility].

SECTION 3. Chapter 253, Health and Safety Code, is amended by adding Section 253.0071 to read as follows:

Sec. 253.0071. NOTICE TO STATE LICENSING AGENCY. If the department in accordance with this chapter finds that an employee of a facility has committed reportable conduct and that employee is licensed by an agency of this state to perform the health care services the employee performs at the facility, the department shall, in addition to recording the reportable conduct in the registry under Section 253.007, notify the appropriate licensing agency of the department's findings.

SECTION 4. Section 555.059(a), Health and Safety Code, is amended to read as follows:

(a) The independent ombudsman shall:

(1) evaluate the process by which a center investigates, reviews, and reports an injury to a resident or client or an unusual incident;

(2) evaluate the delivery of services to residents and clients to ensure that the rights of residents and clients are fully observed, including ensuring that each center conducts sufficient unannounced patrols;

(3) immediately refer a complaint alleging the abuse, neglect, or exploitation of a resident or client to the Department of Family and Protective Services;

(4) refer a complaint alleging employee misconduct that does not involve abuse, neglect, or exploitation or a possible violation of an ICF-MR standard or condition of participation to the regulatory services division of the department;

(5) refer a complaint alleging a criminal offense, other than an allegation of abuse, neglect, or exploitation of a resident or client, to the inspector general;

(6) conduct investigations of complaints, other than complaints alleging criminal offenses or the abuse, neglect, or exploitation of a resident or client, if the office determines that:

(A) a resident or client or the resident's or client's family may be in need of assistance from the office; or

(B) a complaint raises the possibility of a systemic issue in the center's provision of services;

(7) conduct biennial on-site audits at each center of:

(A) the ratio of direct care employees to residents;

(B) the provision and adequacy of training to:

(i) center employees; and

(ii) direct care employees; and

(C) if the center serves alleged offender residents, the provision of specialized training to direct care employees;

(8) conduct an annual audit of each center's policies, practices, and procedures to ensure that each resident and client is encouraged to exercise the resident's or client's rights, including:

(A) the right to file a complaint; and

(B) the right to due process;

(9) prepare and deliver an annual report regarding the findings of each audit to the:

(A) executive commissioner;

(B) commissioner;

(C) Aging and Disability Services Council;

(D) governor;

(E) lieutenant governor;

(F) speaker of the house of representatives;

(G) standing committees of the senate and house of representatives with primary jurisdiction over state supported living centers; and

(H) state auditor;

(10) require a center to provide access to all records, data, and other information under the control of the center that the independent ombudsman determines is necessary to investigate a complaint or to conduct an audit under this section;

(11) review all final reports produced by the Department of Family and Protective Services, the regulatory services division of the department, and the inspector general regarding a complaint referred by the independent ombudsman;

(12) provide assistance to a resident, client, authorized representative of a resident or client, or family member of a resident or client who the independent ombudsman determines is in need of assistance, including advocating with an agency, provider, or other person in the best interests of the resident or client;

(13) make appropriate referrals under any of the duties and powers listed in this subsection; and

(14) monitor and evaluate the department's and the relevant center's actions relating to any problem identified or recommendation included in a report received from the Department of Family and Protective Services relating to an investigation of alleged abuse, neglect, or exploitation of a resident or client.

SECTION 5. Section 48.151(b), Human Resources Code, is amended to read as follows:

(b) The executive commissioner of the Health and Human Services Commission [department] shall adopt rules for conducting investigations under this chapter. The rules must require the department to review all relevant information, including the person's personnel file if available, concerning a person alleged to have abused, neglected, or exploited another person.

SECTION 6. Section 48.401(3), Human Resources Code, is amended to read as follows:

(3) "Employee" means a person, including a physician or nurse, who:

(A) works for an agency; and

(B) provides personal or health care services, active treatment, or any other personal or health care 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].

SECTION 7. Subchapter I, Chapter 48, Human Resources Code, is amended by adding Section 48.4081 to read as follows:

Sec. 48.4081. NOTICE TO STATE LICENSING AGENCY. (a) Notwithstanding Section 48.401(1), for purposes of this section, "state licensing agency" means a department, commission, board, office, or other agency of the state, created by the constitution or a statute of this state, that issues an occupational license to or otherwise regulates a person who practices or engages in an occupation related to the provision of health care services.

(b) If the department in accordance with this chapter finds that an employee of an agency has committed reportable conduct and that employee is licensed by a state licensing agency to perform the health care services the employee performs at the agency, the department shall, in addition to forwarding its finding of reportable conduct to the Department of Aging and Disability Services for recording in the employee misconduct registry under Section 253.007, Health and Safety Code, notify the state licensing agency of the department's findings.

SECTION 8. Not later than January 1, 2014, the Health and Human Services Commission shall establish the central database required by Section 531.0142, Government Code, as added by this Act.

SECTION 9. This Act takes effect September 1, 2013.