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  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