Texas 2009 - 81st Regular

Texas Senate Bill SB806 Compare Versions

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1	1	S.B. No. 806
2	2
3	3
4	4	AN ACT
5	5	relating to certain employee misconduct registries and to the
6	6	imposition of a disciplinary action on a licensed nursing facility
7	7	administrator; providing a penalty.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 242.002, Health and Safety Code, is
10	10	amended by amending Subdivision (4) and adding Subdivision (5-a) to
11	11	read as follows:
12	12	(4) "Department" means the [Texas] Department of Aging
13	13	and Disability [Human] Services.
14	14	(5-a) "Executive commissioner" means the executive
15	15	commissioner of the Health and Human Services Commission.
16	16	SECTION 2. Subsections (a), (c), (d), and (e), Section
17	17	242.313, Health and Safety Code, as added by Section 1.01, Chapter
18	18	1280 (S.B. 84), Acts of the 75th Legislature, Regular Session,
19	19	1997, are amended to read as follows:
20	20	(a) The department may revoke, suspend, or refuse to renew a
21	21	nursing facility administrator's license, assess an administrative
22	22	penalty, issue a written reprimand, require participation in
23	23	continuing education, or place an administrator on probation, after
24	24	due notice and the opportunity for a hearing, on proof of any of the
25	25	following grounds:
26	26	(1) the license holder has wilfully or repeatedly
27	27	violated a provision of this subchapter or a rule adopted under this
28	28	subchapter;
29	29	(2) the license holder has wilfully or repeatedly
30	30	acted in a manner inconsistent with the health and safety of the
31	31	residents of a facility of which the license holder is an
32	32	administrator;
33	33	(3) the license holder obtained or attempted to obtain
34	34	a license through misrepresentation or deceit or by making a
35	35	material misstatement of fact on a license application;
36	36	(4) the license holder's use of alcohol or drugs
37	37	creates a hazard to the residents of a facility;
38	38	(5) a judgment of a court of competent jurisdiction
39	39	finds that the license holder is mentally incapacitated;
40	40	(6) the license holder has been convicted in a court of
41	41	competent jurisdiction of a misdemeanor or felony involving moral
42	42	turpitude; [or]
43	43	(7) the license holder has been convicted in a court of
44	44	competent jurisdiction of an offense listed in Section 250.006; or
45	45	(8) the license holder has been negligent or
46	46	incompetent in the license holder's duties as a nursing facility
47	47	administrator.
48	48	(c) A license holder is entitled to a hearing in accordance
49	49	with rules adopted [promulgated] by the executive commissioner
50	50	[board] before a sanction is imposed under this section.
51	51	(d) The executive commissioner [board] by rule shall adopt a
52	52	broad schedule of sanctions for violations under this subchapter.
53	53	The department shall use the schedule for any sanction imposed [as
54	54	the result of a hearing conducted] in accordance with the rules.
55	55	(e) The executive commissioner [department] shall by rule
56	56	establish criteria to determine whether deficiencies from a
57	57	facility's survey warrant action against an administrator. The
58	58	criteria shall include a determination of whether the survey
59	59	indicates substandard quality of care related to an act or failure
60	60	to act by the administrator, and whether a deficiency is related to
61	61	an act or failure to act by the administrator. If a deficiency on
62	62	which a disciplinary action against an administrator is initiated
63	63	or completed is not substantiated, the disciplinary action shall be
64	64	reversed.
65	65	SECTION 3. Subsections (c) and (d), Section 242.316, Health
66	66	and Safety Code, as added by Section 1.01, Chapter 1280 (S.B. 84),
67	67	Acts of the 75th Legislature, Regular Session, 1997, are amended to
68	68	read as follows:
69	69	(c) If the person accepts the determination and the penalty
70	70	recommended by the department, or if the person fails to timely
71	71	respond to the notice, the department shall impose the recommended
72	72	penalty.
73	73	(d) If the person requests a hearing [or fails to respond
74	74	timely to the notice], the department shall set a hearing and give
75	75	notice of the hearing to the person. The hearing shall be held in
76	76	accordance with the [department's] rules on contested case hearings
77	77	adopted by the executive commissioner.
78	78	SECTION 4. Subsections (a) and (d), Section 242.318, Health
79	79	and Safety Code, as added by Section 2.01, Chapter 1280 (S.B. 84),
80	80	Acts of the 75th Legislature, Regular Session, 1997, are amended to
81	81	read as follows:
82	82	(a) The board may revoke, suspend, or refuse to renew a
83	83	nursing facility administrator's license, assess an administrative
84	84	penalty, issue a written reprimand, require participation in
85	85	continuing education, or place an administrator on probation, after
86	86	due notice and the opportunity for a hearing, on proof of any of the
87	87	following grounds:
88	88	(1) the license holder has wilfully or repeatedly
89	89	violated a provision of this subchapter or a rule adopted under this
90	90	subchapter;
91	91	(2) the license holder has wilfully or repeatedly
92	92	acted in a manner inconsistent with the health and safety of the
93	93	residents of a facility of which the license holder is an
94	94	administrator;
95	95	(3) the license holder obtained or attempted to obtain
96	96	a license through misrepresentation or deceit or by making a
97	97	material misstatement of fact on a license application;
98	98	(4) the license holder's use of alcohol or drugs
99	99	creates a hazard to the residents of a facility;
100	100	(5) a judgment of a court of competent jurisdiction
101	101	finds that the license holder is mentally incapacitated;
102	102	(6) the license holder has been convicted in a court of
103	103	competent jurisdiction of a misdemeanor or felony involving moral
104	104	turpitude; [or]
105	105	(7) the license holder has been convicted in a court of
106	106	competent jurisdiction of an offense listed in Section 250.006; or
107	107	(8) the license holder has been negligent or
108	108	incompetent in the license holder's duties as a nursing facility
109	109	administrator.
110	110	(d) The board by rule shall adopt a broad schedule of
111	111	sanctions for violations under this subchapter. The board shall
112	112	use the schedule for any sanction imposed [as the result of a
113	113	hearing conducted] in accordance with the rules.
114	114	SECTION 5. Subsections (c) and (d), Section 242.321, Health
115	115	and Safety Code, as added by Section 2.01, Chapter 1280 (S.B. 84),
116	116	Acts of the 75th Legislature, Regular Session, 1997, are amended to
117	117	read as follows:
118	118	(c) If the person accepts the determination and the penalty
119	119	recommended by the department, or if the person fails to timely
120	120	respond to the notice, the department shall impose the recommended
121	121	penalty.
122	122	(d) If the person requests a hearing [or fails to respond
123	123	timely to the notice], the department shall set a hearing and give
124	124	notice of the hearing to the person. The hearing shall be held in
125	125	accordance with the [department's] rules on contested case hearings
126	126	adopted by the executive commissioner.
127	127	SECTION 6. The heading to Section 250.003, Health and
128	128	Safety Code, is amended to read as follows:
129	129	Sec. 250.003. VERIFICATION OF EMPLOYABILITY; ANNUAL
130	130	SEARCH; DISCHARGE.
131	131	SECTION 7. Section 250.003, Health and Safety Code, is
132	132	amended by amending Subsection (a) and adding Subsections (a-1) and
133	133	(d) to read as follows:
134	134	(a) A facility may not employ an applicant:
135	135	(1) [a person] if the facility determines, as a result
136	136	of a criminal history check, that the applicant [a person] has been
137	137	convicted of an offense listed in this chapter that bars employment
138	138	or that a conviction is a contraindication to employment with the
139	139	consumers the facility serves;
140	140	(2) [, and] if the applicant is a nurse aide, until the
141	141	facility further verifies that the applicant is listed in the nurse
142	142	aide registry; and
143	143	(3) until the facility verifies that the applicant is
144	144	not designated in the registry maintained under this chapter or in
145	145	the employee misconduct registry maintained under Section 253.007
146	146	as having a finding entered into the registry concerning abuse,
147	147	neglect, or mistreatment of a consumer of a facility, or
148	148	misappropriation of a consumer's property.
149	149	(a-1) Except for an applicant for employment at or an
150	150	employee of a facility licensed under Chapter 242 or 247, a person
151	151	licensed under another law of this state is exempt from the
152	152	requirements of this chapter.
153	153	(d) In addition to the initial verification of
154	154	employability, a facility shall:
155	155	(1) annually search the nurse aide registry maintained
156	156	under this chapter and the employee misconduct registry maintained
157	157	under Section 253.007 to determine whether any employee of the
158	158	facility is designated in either registry as having abused,
159	159	neglected, or exploited a resident or consumer of a facility or an
160	160	individual receiving services from a facility; and
161	161	(2) maintain in each employee's personnel file a copy
162	162	of the results of the search conducted under Subdivision (1).
163	163	SECTION 8. Section 253.001, Health and Safety Code, is
164	164	amended by amending Subdivisions (1), (2), and (3) and adding
165	165	Subdivision (3-a) to read as follows:
166	166	(1) "Commissioner" means the commissioner of aging and
167	167	disability [human] services.
168	168	(2) "Department" means the [Texas] Department of Aging
169	169	and Disability [Human] Services.
170	170	(3) "Employee" means a person who:
171	171	(A) works at a facility;
172	172	(B) is an individual who provides personal care
173	173	services, active treatment, or any other personal services to a
174	174	resident or consumer of the facility; and
175	175	(C) is not licensed by an agency of the state to
176	176	perform the services the employee performs at the facility or is[;
177	177	and
178	178	[(D) is not] a nurse aide employed by a [nursing]
179	179	facility.
180	180	(3-a) "Executive commissioner" means the executive
181	181	commissioner of the Health and Human Services Commission.
182	182	SECTION 9. Chapter 253, Health and Safety Code, is amended
183	183	by adding Section 253.0055 to read as follows:
184	184	Sec. 253.0055. REMOVAL OF NURSE AIDE FINDING. If a finding
185	185	of reportable conduct is the basis for an entry in the nurse aide
186	186	registry maintained under Chapter 250 and the entry is subsequently
187	187	removed from the nurse aide registry, the commissioner or the
188	188	commissioner's designee shall immediately remove the record of
189	189	reportable conduct from the employee misconduct registry
190	190	maintained under Section 253.007.
191	191	SECTION 10. Section 253.006, Health and Safety Code, is
192	192	amended to read as follows:
193	193	Sec. 253.006. INFORMAL PROCEEDINGS. The executive
194	194	commissioner [department] by rule shall adopt procedures governing
195	195	informal proceedings held in compliance with Section 2001.056,
196	196	Government Code.
197	197	SECTION 11. Subsection (a), Section 253.007, Health and
198	198	Safety Code, is amended to read as follows:
199	199	(a) The department shall establish an employee misconduct
200	200	registry. If the department in accordance with this chapter finds
201	201	that an employee of a facility has committed [commits] reportable
202	202	conduct, the department shall make a record of the employee's name,
203	203	the employee's address, the employee's social security number, the
204	204	name of the facility, the address of the facility, the date the
205	205	reportable conduct occurred, and a description of the reportable
206	206	conduct.
207	207	SECTION 12. Section 253.0075, Health and Safety Code, is
208	208	amended to read as follows:
209	209	Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY
210	210	DEPARTMENT OF FAMILY AND PROTECTIVE [AND REGULATORY] SERVICES. On
211	211	receipt of a finding of an employee's reportable conduct by the
212	212	Department of Family and Protective [and Regulatory] Services under
213	213	Subchapter I, Chapter 48, Human Resources Code, the department
214	214	shall record the information in the employee misconduct registry in
215	215	accordance with Section 253.007.
216	216	SECTION 13. Section 253.008, Health and Safety Code, is
217	217	amended to read as follows:
218	218	Sec. 253.008. VERIFICATION OF EMPLOYABILITY; ANNUAL
219	219	SEARCH. (a) Before a facility as defined in this chapter or an
220	220	agency as defined in Section 48.401, Human Resources Code, [or a
221	221	person exempt from licensing under Section 142.003(a)(19)] may hire
222	222	an employee, the facility or agency [person] shall search the
223	223	employee misconduct registry under this chapter and the nurse aide
224	224	registry maintained under Chapter 250 as required by the Omnibus
225	225	Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) to
226	226	determine whether the applicant for employment is designated in
227	227	either registry as having abused, neglected, or exploited a
228	228	resident or consumer of a facility or agency or an individual
229	229	receiving services from a facility or agency [from a person exempt
230	230	from licensing under Section 142.003(a)(19)].
231	231	(b) A facility or agency [a person exempt from licensing
232	232	under Section 142.003(a)(19)] may not employ a person who is listed
233	233	in either registry as having abused, neglected, or exploited a
234	234	resident or consumer of a facility or agency or an individual
235	235	receiving services from a facility or agency [from a person exempt
236	236	from licensing under Section 142.003(a)(19)].
237	237	(c) In addition to the initial verification of
238	238	employability, a facility or agency shall:
239	239	(1) annually search the employee misconduct registry
240	240	and the nurse aide registry maintained under Chapter 250 to
241	241	determine whether any employee of the facility or agency is
242	242	designated in either registry as having abused, neglected, or
243	243	exploited a resident or consumer of a facility or agency or an
244	244	individual receiving services from a facility or agency; and
245	245	(2) maintain in each employee's personnel file a copy
246	246	of the results of the search conducted under Subdivision (1).
247	247	SECTION 14. Section 253.009, Health and Safety Code, is
248	248	amended to read as follows:
249	249	Sec. 253.009. NOTIFICATION. (a) Each facility as defined
250	250	in this chapter and each agency as defined in Section 48.401, Human
251	251	Resources Code, [and each person exempt from licensing under
252	252	Section 142.003(a)(19)] shall notify its employees in a manner
253	253	prescribed by the Department of Aging and Disability Services
254	254	[department]:
255	255	(1) about the employee misconduct registry; and
256	256	(2) that an employee may not be employed if the
257	257	employee is listed in the registry.
258	258	(b) The executive commissioner [department] shall adopt
259	259	rules to implement this section.
260	260	SECTION 15. Section 48.401, Human Resources Code, is
261	261	amended to read as follows:
262	262	Sec. 48.401. DEFINITIONS. In this subchapter:
263	263	(1) "Agency" means:
264	264	(A) an entity licensed under Chapter 142, Health
265	265	and Safety Code; [or]
266	266	(B) a person exempt from licensing under Section
267	267	142.003(a)(19), Health and Safety Code; or
268	268	(C) an entity investigated by the department
269	269	under Subchapter F or under Section 261.404, Family Code.
270	270	(2) "Commissioner" means the commissioner of the
271	271	Department of Family and Protective Services.
272	272	(3) "Employee" means a person who:
273	273	(A) works for an agency;
274	274	(B) provides personal care services, active
275	275	treatment, or any other personal services to an individual
276	276	receiving agency services or to an individual who is a child for
277	277	whom an investigation is authorized under Section 261.404, Family
278	278	Code; and
279	279	(C) is not licensed by the state to perform the
280	280	services the person performs for the agency.
281	281	(4) [(3)] "Employee misconduct registry" means the
282	282	employee misconduct registry established under Chapter 253, Health
283	283	and Safety Code.
284	284	[(4) "Executive director" means the executive
285	285	director of the Department of Protective and Regulatory Services.]
286	286	(5) "Reportable conduct" includes:
287	287	(A) abuse or neglect that causes or may cause
288	288	death or harm to an individual receiving agency services;
289	289	(B) sexual abuse of an individual receiving
290	290	agency services;
291	291	(C) financial exploitation of an individual
292	292	receiving agency services in an amount of $25 or more; and
293	293	(D) emotional, verbal, or psychological abuse
294	294	that causes harm to an individual receiving agency services.
295	295	SECTION 16. Section 48.403, Human Resources Code, is
296	296	amended to read as follows:
297	297	Sec. 48.403. FINDING. After an investigation and following
298	298	the procedures of this subchapter, if the department confirms or
299	299	validates the occurrence of reportable conduct by an employee, the
300	300	department shall immediately forward the finding to the [Texas]
301	301	Department of Aging and Disability [Human] Services to record the
302	302	reportable conduct in the employee misconduct registry under
303	303	Section 253.007, Health and Safety Code.
304	304	SECTION 17. Subsection (c), Section 48.404, Human Resources
305	305	Code, is amended to read as follows:
306	306	(c) If the employee notified of the violation accepts the
307	307	finding of the department or fails to timely respond to the notice,
308	308	the commissioner [executive director] or the commissioner's
309	309	[executive director's] designee shall issue an order approving the
310	310	finding and ordering that the department's findings be forwarded to
311	311	the [Texas] Department of Aging and Disability [Human] Services to
312	312	be recorded in the employee misconduct registry under Section
313	313	253.007, Health and Safety Code.
314	314	SECTION 18. Section 48.405, Human Resources Code, is
315	315	amended to read as follows:
316	316	Sec. 48.405. HEARING; ORDER. (a) If the employee requests
317	317	a hearing, the department or its designee shall:
318	318	(1) set a hearing;
319	319	(2) give written notice of the hearing to the
320	320	employee; and
321	321	(3) designate a hearings examiner to conduct the
322	322	hearing.
323	323	(b) The hearings examiner shall make findings of fact and
324	324	conclusions of law and shall promptly issue to the commissioner
325	325	[executive director] or the commissioner's [executive director's]
326	326	designee a proposal for decision as to the occurrence of the
327	327	reportable conduct.
328	328	(c) Based on the findings of fact and conclusions of law and
329	329	the recommendations of the hearings examiner, the commissioner
330	330	[executive director] or the commissioner's [executive director's]
331	331	designee by order may find that the reportable conduct has
332	332	occurred. If the commissioner [executive director] or the
333	333	commissioner's [executive director's] designee finds that
334	334	reportable conduct has occurred, the commissioner [executive
335	335	director] or the commissioner's [executive director's] designee
336	336	shall issue an order approving the finding.
337	337	SECTION 19. Subsections (b) and (d), Section 48.406, Human
338	338	Resources Code, are amended to read as follows:
339	339	(b) Not later than the 30th day after the date the decision
340	340	becomes final as provided by Chapter 2001, Government Code, the
341	341	employee may file a petition for judicial review contesting the
342	342	finding of the reportable conduct. If the employee does not request
343	343	judicial review of the finding, the department shall send a record
344	344	of the department's findings to the [Texas] Department of Aging and
345	345	Disability [Human] Services to record in the employee misconduct
346	346	registry under Section 253.007, Health and Safety Code.
347	347	(d) If the court sustains the finding of the occurrence of
348	348	the reportable conduct, the department shall forward the finding of
349	349	reportable conduct to the [Texas] Department of Aging and
350	350	Disability [Human] Services to record the reportable conduct in the
351	351	employee misconduct registry under Section 253.007, Health and
352	352	Safety Code.
353	353	SECTION 20. Section 48.407, Human Resources Code, is
354	354	amended to read as follows:
355	355	Sec. 48.407. INFORMAL PROCEEDINGS. The executive
356	356	commissioner [department] by rule shall adopt procedures governing
357	357	informal proceedings held in compliance with Section 2001.056,
358	358	Government Code.
359	359	SECTION 21. Section 48.408, Human Resources Code, is
360	360	amended to read as follows:
361	361	Sec. 48.408. INFORMATION FOR THE EMPLOYEE MISCONDUCT
362	362	REGISTRY. (a) When the department forwards a finding of
363	363	reportable conduct to the [Texas] Department of Aging and
364	364	Disability [Human] Services for recording in the employee
365	365	misconduct registry, the department shall provide the employee's
366	366	name, the employee's address, the employee's social security
367	367	number, if available, the name of the agency, the address of the
368	368	agency, the date the reportable conduct occurred, and a description
369	369	of the reportable conduct.
370	370	(b) If a governmental agency of another state or the federal
371	371	government finds that an employee has committed an act that
372	372	constitutes reportable conduct, the department may send to the
373	373	[Texas] Department of Aging and Disability [Human] Services, for
374	374	recording in the employee misconduct registry, the employee's name,
375	375	the employee's address, the employee's social security number, if
376	376	available, the name of the agency, the address of the agency, the
377	377	date of the act, and a description of the act.
378	378	SECTION 22. The change in law made by Sections 1 through 5
379	379	of this Act applies only to a disciplinary action imposed on or
380	380	after the effective date of this Act. A disciplinary action imposed
381	381	before that date is governed by the law in effect at the time the
382	382	action was initiated, and the former law is continued in effect for
383	383	that purpose.
384	384	SECTION 23. Not later than September 1, 2010, the executive
385	385	commissioner of the Health and Human Services Commission shall
386	386	adopt the rules necessary to implement the changes in law made by
387	387	this Act related to the employee misconduct registry, the nurse
388	388	aide registry, and records contained in those registries. The
389	389	changes in law made by this Act apply only to reportable conduct
390	390	that occurs on or after September 1, 2010. Reportable conduct that
391	391	occurs before that date is governed by the law in effect immediately
392	392	before the effective date of this Act, and that law is continued in
393	393	effect for that purpose.
394	394	SECTION 24. This Act takes effect immediately if it
395	395	receives a vote of two-thirds of all the members elected to each
396	396	house, as provided by Section 39, Article III, Texas Constitution.
397	397	If this Act does not receive the vote necessary for immediate
398	398	effect, this Act takes effect September 1, 2009.
399	399	______________________________ ______________________________
400	400	President of the Senate Speaker of the House
401	401	I hereby certify that S.B. No. 806 passed the Senate on
402	402	April 2, 2009, by the following vote: Yeas 31, Nays 0; and that
403	403	the Senate concurred in House amendment on May 29, 2009, by the
404	404	following vote: Yeas 31, Nays 0.
405	405	______________________________
406	406	Secretary of the Senate
407	407	I hereby certify that S.B. No. 806 passed the House, with
408	408	amendment, on May 27, 2009, by the following vote: Yeas 148,
409	409	Nays 0, one present not voting.
410	410	______________________________
411	411	Chief Clerk of the House
412	412	Approved:
413	413	______________________________
414	414	Date
415	415	______________________________
416	416	Governor