83R9816 AED-F
By: Price H.B. No. 2683
A BILL TO BE ENTITLED
AN ACT
relating to employment in certain consumer-directed services and by
certain facilities and to the nurse aide registry and the employee
misconduct registry.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 250.001, Health and Safety Code, is
amended by adding Subdivisions (1-a) and (1-b) and amending
Subdivisions (2) and (3-b) to read as follows:
(1-a) "Consumer" means a resident of or an individual
receiving services from a facility covered by this chapter.
(1-b) "Consumer-directed service option" has the
meaning assigned by Section 531.051, Government Code.
(2) "Direct contact with a consumer" means any contact
with a consumer [resident or client in a facility covered by this
chapter].
(3-b) "Individual employer" means an individual or
legally authorized representative who participates in the
consumer-directed service option [described by Section 531.051,
Government Code,] and is responsible for hiring service providers
to deliver program services.
SECTION 2. Sections 250.003(a), (c), and (d), Health and
Safety Code, are amended to read as follows:
(a) A facility or individual employer may not employ an
applicant:
(1) if the facility or individual employer determines,
as a result of a criminal history check, that the applicant 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 or to direct contact with the individual
employer using the consumer-directed service option [serves];
(2) if the applicant is a nurse aide, until the
facility or individual employer further verifies that the applicant
is listed in the nurse aide registry; and
(3) until the facility or individual employer 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 an
individual using the consumer-directed service option or a consumer
[of a facility], or misappropriation of the property of an
individual using the consumer-directed service option or of a
consumer [a consumer's property].
(c) A facility or individual employer shall immediately
discharge any employee:
(1) who is designated in the nurse aide registry or the
employee misconduct registry established under Chapter 253 as
having committed an act of abuse, neglect, or mistreatment of an
individual using the consumer-directed service option or a consumer
[of a facility], or misappropriation of the property of an
individual using the consumer-directed service option or of a
consumer; [a consumer's property,] or
(2) whose criminal history check reveals conviction of
a crime that bars employment or that the individual employer or the
facility determines is a contraindication to employment as provided
by this chapter.
(d) In addition to the initial verification of
employability, a facility or an individual employer or financial
management services agency on behalf of an individual employer
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 or of an individual employer is designated in either
registry as having abused, neglected, or exploited a [resident or]
consumer [of a facility] or an individual using the
consumer-directed service option [receiving services from a
facility]; and
(2) maintain in the facility's or employer's books and
records [each employee's personnel file] a copy of the results of
the search conducted under Subdivision (1).
SECTION 3. Section 250.006(a), Health and Safety Code, is
amended to read as follows:
(a) A person for whom the facility or the individual
employer is entitled to obtain criminal history record information
may not be employed in a facility or by an individual employer if
the person has been convicted of an offense listed in this
subsection:
(1) an offense under Chapter 19, Penal Code (criminal
homicide);
(2) an offense under Chapter 20, Penal Code
(kidnapping and unlawful restraint);
(3) an offense under Section 21.02, Penal Code
(continuous sexual abuse of young child or children), or Section
21.11, Penal Code (indecency with a child);
(4) an offense under Section 22.011, Penal Code
(sexual assault);
(5) an offense under Section 22.02, Penal Code
(aggravated assault);
(6) an offense under Section 22.04, Penal Code (injury
to a child, elderly individual, or disabled individual);
(7) an offense under Section 22.041, Penal Code
(abandoning or endangering child);
(8) an offense under Section 22.08, Penal Code (aiding
suicide);
(9) an offense under Section 25.031, Penal Code
(agreement to abduct from custody);
(10) an offense under Section 25.08, Penal Code (sale
or purchase of a child);
(11) an offense under Section 28.02, Penal Code
(arson);
(12) an offense under Section 29.02, Penal Code
(robbery);
(13) an offense under Section 29.03, Penal Code
(aggravated robbery);
(14) an offense under Section 21.08, Penal Code
(indecent exposure);
(15) an offense under Section 21.12, Penal Code
(improper relationship between educator and student);
(16) an offense under Section 21.15, Penal Code
(improper photography or visual recording);
(17) an offense under Section 22.05, Penal Code
(deadly conduct);
(18) an offense under Section 22.021, Penal Code
(aggravated sexual assault);
(19) an offense under Section 22.07, Penal Code
(terroristic threat);
(20) an offense under Section 32.53, Penal Code
(exploitation of a child, elderly individual, or disabled
individual);
(21) an offense under Section 33.021, Penal Code
(online solicitation of a minor);
(22) [(21)] an offense under Section 34.02, Penal Code
(money laundering);
(23) [(22)] an offense under Section 35A.02, Penal
Code (Medicaid fraud);
(24) [(23)] an offense under Section 36.06, Penal Code
(obstruction or retaliation);
(25) [(24)] an offense under Section 42.09, Penal Code
(cruelty to livestock animals), or under Section 42.092, Penal Code
(cruelty to nonlivestock animals); or
(26) [(25)] a conviction under the laws of another
state, federal law, or the Uniform Code of Military Justice for an
offense containing elements that are substantially similar to the
elements of an offense listed by this subsection.
SECTION 4. Section 253.001, Health and Safety Code, is
amended by adding Subdivisions (1-a), (1-b), (4-a), and (4-b) and
amending Subdivisions (3) and (5) to read as follows:
(1-a) "Consumer" means a resident of or an individual
receiving services from a facility covered by this chapter.
(1-b) "Consumer-directed service option" has the
meaning assigned by Section 531.051, Government Code.
(3) "Employee" means a person who:
(A) works at a facility or for an individual
employer;
(B) is an individual who provides personal care
services, active treatment, or any other personal services to a
[resident or] consumer or to an individual using the
consumer-directed service option [of the facility]; and
(C) is not licensed by an agency of the state to
perform the services the employee performs for the individual using
the consumer-directed service option or at the facility or is a
nurse aide employed by a facility.
(4-a) "Financial management services agency" means an
entity that contracts with the Department of Aging and Disability
Services to serve as a fiscal and employer agent for an individual
employer using the consumer-directed service option.
(4-b) "Individual employer" means an individual or
legally authorized representative who participates in the
consumer-directed service option and is responsible for hiring
providers to deliver program services.
(5) "Reportable conduct" includes:
(A) abuse or neglect that causes or may cause
death or harm to an individual using the consumer-directed service
option or a [resident or] consumer [of a facility];
(B) sexual abuse of an individual using the
consumer-directed service option or a [resident or] consumer [of a
facility];
(C) financial exploitation of an individual
using the consumer-directed service option or a [resident or]
consumer [of a facility] in an amount of $25 or more; and
(D) emotional, verbal, or psychological abuse
that causes harm to an individual using the consumer-directed
service option or a [resident or] consumer [of a facility].
SECTION 5. Section 253.002(b), Health and Safety Code, is
amended to read as follows:
(b) If the Department of Aging and Disability Services
receives a report that an employee of a facility licensed under
Chapter 252 or of an individual employer committed reportable
conduct, the department shall forward that report to the Department
of Family and Protective Services for investigation.
SECTION 6. Section 253.004, Health and Safety Code, is
amended by adding Subsection (a-1) to read as follows:
(a-1) The department must complete the hearing and the
hearing record not later than the 120th day after the date the
department receives a request for a hearing.
SECTION 7. Section 253.007(a), 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 or of an individual employer has
committed 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 or employer, the address
of the facility or employer, the date the reportable conduct
occurred, and a description of the reportable conduct.
SECTION 8. 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 or individual employer as defined in
this chapter or an agency as defined in Section 48.401, Human
Resources Code, may hire an employee, the individual employer or a
financial management services agency on behalf of the individual
employer, the facility, or agency 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 an individual
using the consumer-directed service option or a [resident or]
consumer [of a facility or agency or an individual receiving
services from a facility or agency].
(b) A facility, individual employer or financial management
services agency on behalf of an individual employer, or agency may
not employ a person who is listed in either registry as having
abused, neglected, or exploited an individual using the
consumer-directed service option or a [resident or] consumer [of a
facility or agency or an individual receiving services from a
facility or agency].
(c) In addition to the initial verification of
employability, a facility, [or] agency, individual employer, or
financial management services agency on behalf of an individual
employer shall:
(1) annually search the employee misconduct registry
and the nurse aide registry maintained under Chapter 250 to
determine whether any employee of the employer, facility, or
applicable agency is designated in either registry as having
abused, neglected, or exploited an individual using the
consumer-directed service option or a [resident or] consumer [of a
facility or agency or an individual receiving services from a
facility or agency]; and
(2) maintain in the facility's or employer's books and
records [each employee's personnel file] a copy of the results of
the search conducted under Subdivision (1).
SECTION 9. Section 253.009(a), Health and Safety Code, is
amended to read as follows:
(a) Each facility or individual employer as defined in this
chapter and each agency as defined in Section 48.401, Human
Resources Code, shall notify its employees in a manner prescribed
by the Department of Aging and Disability Services:
(1) about the employee misconduct registry; and
(2) that an employee may not be employed if the
employee is listed in the registry.
SECTION 10. Section 250.003(c-1), Health and Safety Code,
is repealed.
SECTION 11. This Act takes effect January 1, 2014.