By: Nelson S.B. No. 75
A BILL TO BE ENTITLED
AN ACT
relating to the imposition of background and criminal history check
requirements for operators and employees of, and certain other
persons at, facilities and agencies licensed by the Department of
Aging and Disability Services; providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 161, Human Resources Code,
is amended by adding Section 161.083 to read as follows:
Sec. 161.083. REQUIRED BACKGROUND AND CRIMINAL HISTORY
CHECKS; CRIMINAL PENALTIES. (a) In accordance with rules adopted
by the executive commissioner, the director, owner, or operator of
a facility or agency licensed by or applying for a license from the
department shall submit to the Department of Public Safety for use
in conducting background and criminal history checks:
(1) when applying for a license from the department,
the name of each person who will provide direct care or who has
direct access to residents or clients of the facility or agency and
who is:
(A) a director, owner, or operator of the
facility or agency; or
(B) a person employed at the facility or by the
agency; and
(2) after receiving a license from the department, at
the time specified by the rules adopted by the executive
commissioner, the name of each person who will provide direct care
or who will have direct access to residents or clients of the
facility or agency and who is a prospective:
(A) employee of the facility or agency; or
(B) volunteer at the facility or with the agency.
(b) In accordance with rules adopted by the executive
commissioner, the director, owner, or operator of a facility or
agency licensed by the department shall submit a complete set of
fingerprints of each employee or prospective employee whose name is
required to be submitted under Subsection (a) and who will provide
direct care or have direct access to a resident or client in the
facility or of the agency, unless the person:
(1) is a person for whom fingerprints have previously
been submitted on behalf of the facility or agency under this
section; or
(2) is precluded from providing direct care or having
direct access to a resident or client in the facility or of the
agency based on the information resulting from a completed state
criminal history check.
(c) The director, owner, or operator of a facility or agency
licensed by the department shall ensure that the facility or agency
complies with this section and that the facility or agency
immediately terminates the employment of a person who, as a result
of a background check completed under this section, is precluded
from providing direct care or having direct access to a resident or
client in the facility or of the agency.
(d) The rules adopted under Subsections (a) and (b):
(1) must require that the fingerprints be submitted in
a form and of a quality acceptable to the Department of Public
Safety and the Federal Bureau of Investigation for conducting a
criminal history check;
(2) may require that the fingerprints be submitted
electronically through an applicant fingerprinting service center;
and
(3) shall require a facility or agency licensed by the
department to pay to the department a fee in an amount not to exceed
the administrative costs the department incurs in processing
background and criminal history checks conducted under this
section.
(e) A director, owner, or operator of a facility or agency
licensed by the department commits an offense if the director,
owner, or operator knowingly:
(1) fails to submit information about a person as
required by this section or rules adopted by the executive
commissioner to conduct background and criminal history checks with
respect to the person; and
(2) employs the person at the facility or agency or
otherwise allows the person to regularly or frequently stay or work
at the facility or agency while residents or clients are being
provided care.
(f) A director, owner, or operator of a facility or agency
licensed by the department commits an offense if, after the date the
director, owner, or operator discovers that, based on the results
of a person's background or criminal history check, the person is
precluded from providing direct care or having direct access to a
resident or client in the facility or of the agency, the director,
owner, or operator knowingly:
(1) employs the person at the facility or agency; or
(2) otherwise allows the person to regularly or
frequently stay or work at the facility or agency while residents or
clients are being provided care.
(g) An offense under Subsection (e) or (f) is a Class B
misdemeanor.
SECTION 2. Subchapter F, Chapter 411, Government Code, is
amended by adding Section 411.1146 to read as follows:
Sec. 411.1146. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION: DEPARTMENT OF AGING AND DISABILITY SERVICES
LICENSEES. (a) The Department of Aging and Disability Services is
entitled to obtain from the department criminal history record
information maintained by the department that relates to a person
who is:
(1) an applicant for a license issued by the
Department of Aging and Disability Services;
(2) an employee or an applicant for employment at a
facility or agency licensed by the Department of Aging and
Disability Services; or
(3) a volunteer or applicant to be a volunteer at a
facility or agency licensed by the Department of Aging and
Disability Services.
(b) Criminal history record information obtained by the
Department of Aging and Disability Services under Subsection (a)
may not be released or disclosed to any person except:
(1) on court order;
(2) with the consent of the person who is the subject
of the criminal history record information;
(3) for purposes of an administrative hearing held by
the Department of Aging and Disability Services concerning the
person who is the subject of the criminal history record
information; or
(4) as provided by Subsection (c).
(c) The Department of Aging and Disability Services is not
prohibited from releasing criminal history record information
obtained under this section to:
(1) the person who is the subject of the criminal
history record information; or
(2) a facility or agency:
(A) that employs or is considering employing the
person who is the subject of the criminal history record
information; or
(B) at which the person regularly stays or works.
(d) Subject to Section 411.087, the Department of Aging and
Disability Services is entitled to:
(1) obtain through the Federal Bureau of Investigation
criminal history record information maintained or indexed by that
bureau that pertains to a person described by Subsection (a); and
(2) obtain from any other criminal justice agency in
this state criminal history record information maintained by that
criminal justice agency that relates to a person described by
Subsection (a).
(e) The Department of Aging and Disability Services shall
collect and destroy criminal history record information that
relates to a person immediately after providing the information to
a facility or agency making an employment decision or taking a
personnel action relating to the person who is the subject of the
criminal history record information.
SECTION 3. (a) The changes in law made by this Act relating
to background and criminal history checks apply only to background
and criminal history checks performed on or after September 1,
2013.
(b) Not later than September 1, 2012, the executive
commissioner of the Health and Human Services Commission shall
adopt rules as required by Section 161.083, Human Resources Code,
as added by this Act.
SECTION 4. Sections 161.083(e), (f), and (g), Human
Resources Code, as added by this Act, take effect September 1, 2013.
SECTION 5. Except as otherwise provided by this Act, this
Act takes effect September 1, 2011.