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
______________________________
Governor