By: Kolkhorst S.B. No. 1849
(In the Senate - Filed March 8, 2023; March 20, 2023, read
first time and referred to Committee on Health & Human Services;
April 4, 2023, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 9, Nays 0; April 4, 2023,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1849 By: Miles
A BILL TO BE ENTITLED
AN ACT
relating to an interagency reportable conduct search engine,
standards for a person's removal from the employee misconduct
registry and eligibility for certification as certain Texas
Juvenile Justice Department officers and employees, and the
Department of Family and Protective Services' use of certain
information to conduct background checks.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 253.010, Health and Safety Code, is
amended to read as follows:
Sec. 253.010. REMOVAL FROM REGISTRY. (a) The commission
[department] may remove a person from the employee misconduct
registry if, after receiving a written request from the person, the
commission [department] determines that the person does not meet
the requirements for inclusion in the employee misconduct registry.
(b) The executive commissioner by rule may establish:
(1) criteria for a person to submit a request for
removal under Subsection (a); and
(2) a process for the commission to determine whether
the person meets the requirements for inclusion in the misconduct
registry.
SECTION 2. Title 9, Health and Safety Code, is amended by
adding Subtitle D to read as follows:
SUBTITLE D. INTERAGENCY SAFETY INITIATIVES
CHAPTER 810. INTERAGENCY REPORTABLE CONDUCT SEARCH ENGINE
Sec. 810.001. DEFINITIONS. In this chapter:
(1) "Client" means a child, an individual with a
disability, or an elderly individual receiving services or care
from a participating state agency, a designated user, or a facility
or entity that is licensed, certified, or otherwise regulated by a
participating state agency.
(2) "Department" means the Department of Information
Resources.
(3) "Designated user" means a person designated by the
department or a participating state agency under Section 810.004 to
use the search engine.
(4) "License" has the meaning assigned by Section
2001.003, Government Code.
(5) "Participating state agency" means a state agency
listed in Section 810.002.
(6) "Reportable conduct" means a participating state
agency's determination:
(A) that an individual engaged in abuse, neglect,
exploitation, or misconduct; and
(B) for which the agency has:
(i) provided any required notice or
opportunity to contest the determination; and
(ii) issued a final determination.
(7) "Search engine" means the interagency reportable
conduct search engine established under this chapter.
Sec. 810.002. APPLICABILITY. This chapter applies to the
following state agencies:
(1) the Department of Family and Protective Services;
(2) the Health and Human Services Commission;
(3) the Texas Education Agency; and
(4) the Texas Juvenile Justice Department.
Sec. 810.003. ESTABLISHMENT OF INTERAGENCY REPORTABLE
CONDUCT SEARCH ENGINE. (a) The department, in collaboration with
each participating state agency, shall establish an interagency
reportable conduct search engine for persons to search in
accordance with this chapter information on reportable conduct
maintained by:
(1) the Department of Family and Protective Services
in the central registry established under Section 261.002, Family
Code;
(2) the Health and Human Services Commission in the
employee misconduct registry established under Chapter 253;
(3) the Texas Education Agency in the registry
established under Section 22.092, Education Code; and
(4) the Texas Juvenile Justice Department in the
integrated certification information system and in any informal
list the Texas Juvenile Justice Department maintains.
(b) The department shall ensure the search engine results
are machine-readable and accessible to each participating state
agency and designated users in accordance with this chapter for the
purpose of identifying individuals who may be ineligible for
employment, a contract, certification, or licensure based on
reportable conduct.
Sec. 810.004. ELIGIBILITY TO ACCESS SEARCH ENGINE; USER
CREDENTIALS. (a) The executive head of each participating state
agency shall designate agency employees or contractors who are
eligible to access the search engine and the agency's automation
systems to determine whether an individual has engaged in
reportable conduct.
(b) In addition to the eligible individuals described by
Subsection (a), each participating state agency shall designate
additional users who are eligible to access the search engine and
may require those users to determine whether an individual has
engaged in reportable conduct. The additional designated users may
include controlling persons, hiring managers, or administrators
of:
(1) licensed or certified long-term care providers,
including:
(A) home and community support services agencies
licensed under Chapter 142;
(B) nursing facilities licensed under Chapter
242;
(C) assisted living facilities licensed under
Chapter 247;
(D) prescribed pediatric extended care centers
licensed under Chapter 248A;
(E) intermediate care facilities for individuals
with an intellectual disability licensed under Chapter 252;
(F) state supported living centers, as defined by
Section 531.002; and
(G) day activity and health services facilities
licensed under Chapter 103, Human Resources Code;
(2) providers under a Section 1915(c) waiver program,
as defined by Section 531.001, Government Code;
(3) juvenile probation departments and registered
juvenile justice facilities;
(4) independent school districts, districts of
innovation, open-enrollment charter schools, other charter
entities, as defined by Section 21.006, Education Code, regional
education service centers, education shared services arrangements,
private schools, or any other educational entity or provider that
is authorized to access the registry established under Section
22.092, Education Code; and
(5) nonprofit teacher organizations approved by the
commissioner of education for the purpose of participating in the
tutoring program established under Section 33.913, Education Code.
(c) The department and each participating state agency
shall develop a process to issue user credentials to each
designated user that authorizes the user to access the search
engine. The process must require the revocation of user
credentials for a person who is no longer eligible to access the
search engine.
Sec. 810.005. INFORMATION ACCESSIBLE THROUGH SEARCH
ENGINE; ADDITIONAL INFORMATION SHARING. (a) For each individual
identified by a participating state agency as having engaged in
reportable conduct, the search engine results for that individual
must include:
(1) the individual's full name;
(2) at least one of the following:
(A) the individual's date of birth; or
(B) the last four digits of the individual's
social security number;
(3) at least one of the following:
(A) information relevant to determining whether
the individual is eligible for employment, a contract,
certification, or licensure; or
(B) the type or a description of the reportable
conduct;
(4) any available date on which:
(A) the reportable conduct occurred; or
(B) a final determination was issued on the
reportable conduct; and
(5) the participating state agency that maintains the
reportable conduct information.
(b) An individual who engaged in reportable conduct that
requires the individual's inclusion in search engine results is not
entitled to notice or an opportunity for a hearing before the
individual's information is included in the search engine results
or shared with the department, a participating state agency, or a
designated user in accordance with this chapter and rules adopted
under this chapter.
(c) A participating state agency may share with other
participating agencies additional information on an individual
included in search engine results to supplement the information
contained in those results for purposes authorized under this
chapter.
Sec. 810.006. REQUIRED SEARCH QUERY AND USE OF SEARCH
ENGINE RESULTS. (a) Each participating state agency and
designated user shall conduct a search query using the search
engine to determine whether an individual who may have access to a
client has engaged in reportable conduct and, if the individual has
engaged in reportable conduct, whether the individual is ineligible
for:
(1) employment, a volunteer position, or a contract
with the agency, the user, or a facility or entity licensed,
certified, or otherwise regulated by the agency; or
(2) licensure or certification by the agency in a
profession or for the operation of a facility or entity that the
agency regulates.
(b) A participating state agency's or designated user's
determination under Subsection (a) that an individual is ineligible
for employment, a volunteer position, a contract, a license, or a
certification must be based on standards authorized or required by
law.
(c) A participating state agency or designated user must
conduct a search query required under Subsection (a) before the
agency or user employs, places in a volunteer position, enters into
a contract with, or issues a license or certification to an
individual. Each participating state agency by rule shall
establish procedures for conducting periodic search queries using
the search engine to monitor whether an individual the agency or a
designated user employs, places in a volunteer position, contracts
with, or issues a license or certification to engages in reportable
conduct.
(d) Each participating state agency, including the Texas
Education Agency in collaboration with the State Board for Educator
Certification, by rule may:
(1) authorize an individual who is determined to have
engaged in reportable conduct to be employed or placed in a
volunteer position by, enter into a contract with, or receive a
license or certification from the agency or a designated user in
accordance with standards prescribed by agency rules and as
otherwise permitted by law; and
(2) prescribe the manner in which information
contained in search engine results may be used based on:
(A) the nature of the reportable conduct;
(B) the date the reportable conduct occurred;
(C) the severity of the reportable conduct; and
(D) any other factors the agency determines
necessary.
(e) Notwithstanding any provision of this chapter, a
private school is not required to conduct search queries using the
search engine for the purposes described by this chapter.
Sec. 810.007. NOTICE AND HEARING. (a) A participating
state agency or designated user that does not employ, place in a
volunteer position, enter into a contract with, or issue a license
or certification to an individual based on a determination under
Section 810.006 that the individual has engaged in reportable
conduct shall notify the individual of that determination.
(b) Each participating state agency may provide an
individual to whom notice is provided under this section an
opportunity for a hearing regarding the determination on the
individual's written request. The hearing must be conducted in
accordance with Chapter 2001, Government Code.
(c) Notwithstanding any other law, in a hearing conducted
under this section a participating state agency is not required to
prove that:
(1) an individual engaged in reportable conduct; or
(2) an individual's inclusion in search engine results
was appropriate.
Sec. 810.008. OFFICE OF INTERAGENCY COORDINATION ON
REPORTABLE CONDUCT. (a) The Office of Interagency Coordination on
Reportable Conduct is established within the Department of Family
and Protective Services to facilitate:
(1) coordination among the department and each
participating state agency in administering this chapter; and
(2) communication between the department, each
participating state agency, designated users, interested persons,
and the public regarding any relevant search engine information.
(b) The Department of Family and Protective Services, in
collaboration with the department and each other participating
state agency, shall adopt rules on the establishment and operation
of the Office of Interagency Coordination on Reportable Conduct.
Sec. 810.009. MEMORANDUM OF UNDERSTANDING. The department
and each participating state agency shall enter into a memorandum
of understanding on the implementation and administration of this
chapter. The memorandum must specify each agency's roles and
duties with respect to establishing and maintaining the search
engine.
Sec. 810.010. CONFIDENTIALITY. Information contained in
search engine results and additional information shared by a
participating state agency under Section 810.005(c), including
documents, is confidential and not subject to disclosure under
Chapter 552, Government Code.
SECTION 3. Section 42.056(b), Human Resources Code, is
amended to read as follows:
(b) The department shall conduct background checks using:
(1) the information provided under Subsection (a);
(2) the information made available by the Department
of Public Safety under Section 411.114, Government Code, or by the
Federal Bureau of Investigation or other criminal justice agency
under Section 411.087, Government Code;
(3) the department's records of reported abuse and
neglect; [and]
(4) any other registry, repository, or database
required by federal law;
(5) any information provided by the Texas Juvenile
Justice Department under a memorandum of understanding; and
(6) the interagency reportable conduct search engine
established under Chapter 810, Health and Safety Code.
SECTION 4. The heading to Section 222.053, Human Resources
Code, is amended to read as follows:
Sec. 222.053. REVOCATION OR SUSPENSION OF CERTIFICATION OR
PROVISIONAL CERTIFICATION.
SECTION 5. Section 222.053, Human Resources Code, is
amended by amending Subsection (c) and adding Subsection (f) to
read as follows:
(c) The executive director may convene, in person or
telephonically, a panel of three board members to determine if a
person's continued certification threatens juveniles in the
juvenile justice system. If the panel determines that the person's
continued certification threatens juveniles in the juvenile
justice system, the person's certification [license] is
temporarily suspended until an administrative hearing is held as
soon as possible under Subsection (d). The executive director may
convene a panel under this subsection only if the danger posed by
the person's continued certification is imminent. The panel may
hold a telephonic meeting only if immediate action is required and
convening the panel at one location is inconvenient for any member
of the panel.
(f) In this section, "certification" includes a provisional
certification.
SECTION 6. Subchapter B, Chapter 222, Human Resources Code,
is amended by adding Section 222.054 to read as follows:
Sec. 222.054. CERTIFICATION OR PROVISIONAL CERTIFICATION
INELIGIBILITY. (a) In this section, "certification" includes a
provisional certification.
(b) The department may designate an individual who has been
terminated from employment with the department as ineligible for
certification under this chapter or rules adopted under this
chapter if:
(1) the individual engaged in conduct violating this
chapter or a department rule; or
(2) a panel under Subsection (c) determines the
individual's certification would threaten juveniles in the
juvenile justice system.
(c) The executive director may convene, in person or
telephonically, a panel of three board members to determine if a
former department employee's continued eligibility to obtain a
certification under this chapter threatens juveniles in the
juvenile justice system. The department shall temporarily
designate an individual as ineligible for certification if the
panel determines the individual's eligibility for certification
threatens juveniles in the juvenile justice system until an
administrative hearing under Subsection (d). The hearing must be
held as soon as possible following the temporary designation. The
executive director may convene a panel under this subsection only
if the danger posed by the person's continued eligibility is
imminent. The panel may hold a telephonic meeting only if immediate
action is required and convening the panel at one location is
inconvenient for any member of the panel.
(d) A person is entitled to a hearing before the State
Office of Administrative Hearings if the department proposes to
designate a person as ineligible for certification.
(e) A person may appeal a ruling or order issued under this
section to a district court in the county in which the person
resides or in Travis County. The standard of review is under the
substantial evidence rule.
SECTION 7. (a) In this section, "search engine" means the
interagency reportable conduct search engine established under
Chapter 810, Health and Safety Code, as added by this Act.
(b) As soon as practicable after the effective date of this
Act, the Department of Information Resources shall collaborate with
the Department of Family and Protective Services, the Health and
Human Services Commission, the Texas Education Agency, and the
Texas Juvenile Justice Department to establish the search engine as
required by Chapter 810, Health and Safety Code, as added by this
Act.
(c) The establishment of the search engine may take place in
phases in accordance with an implementation plan developed by the
state agencies listed under Subsection (b) of this section in
collaboration with the Office of Interagency Coordination on
Reportable Conduct established under Section 810.008, Health and
Safety Code, as added by this Act. The implementation plan may
include a pilot phase.
(d) At the conclusion of the implementation plan described
by Subsection (c) of this section, each state agency and other
persons authorized to use the search engine shall use the search
engine as required by Chapter 810, Health and Safety Code, as added
by this Act.
SECTION 8. As soon as practicable after the effective date
of this Act, the commissioner of the Department of Family and
Protective Services, the executive commissioner of the Health and
Human Services Commission, the commissioner of education, and the
Texas Juvenile Justice Board shall adopt rules as necessary to
implement the changes in law made by this Act.
SECTION 9. This Act takes effect September 1, 2023.
* * * * *