HBA-DMD H.B. 3386 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3386 By: Hilderbran Human Services 3/29/1999 Introduced BACKGROUND AND PURPOSE The Texas Department of Human Services currently maintains a registry of nurse aides in Texas nursing facilities, which is utilized in performing background checks on nurse aides that have applied for jobs in nursing facilities (facility). The current registry tracks nurse aides, but not other employees. H.B. 3386 requires an agency that has regulatory authority over the facility (department), to investigate complaints accusing an employee of the facility of abusing or neglecting patients. This bill requires a department to give written notice of the department's findings. It establishes a hearing process if the employee requests a hearing and establishes a process for judicial review. H.B. 3386 requires the department to adopt procedural rules that govern the informal proceedings. This bill requires the department to make public a record of certain information regarding an employee who has neglected or abused a patient. This bill also requires a facility to search the registry before hiring an employee. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Department of Human Services, the Department of Health, and the Department of Mental Health and Retardation in SECTION 2 (Section 253.006, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 250.004(a), Health and Safety Code, to specify the provisions included in "identifying information." Makes conforming changes. SECTION 2. Amends Subtitle B, Title 4, Health and Safety Code, by adding Chapter 253, as follows: CHAPTER 253. EMPLOYEE MISCONDUCT REGISTRY Sec. 253.001. DEFINITIONS. Defines "commissioner," "department," "direct contact working with a consumer," "employee," and "facility." Sec. 253.002. INVESTIGATION BY DEPARTMENT. Requires an agency that has regulatory authority over the facility (department), upon receiving a complaint that an employee of a facility has abused, neglected, or exploited a consumer of a facility or misappropriated a consumer's property, to investigate the complaint in order to determine whether the employee has committed the act of abuse, neglect, exploitation, or misappropriation. Sec. 253.003. DETERMINATION; NOTICE. (a) Requires a department to give written notice of the department's findings, if after investigating a complaint the department determines that the employee abused, neglected, or exploited a consumer of the facility or misappropriated a consumer's property. Specifies provisions for the notice. (b) Authorizes the employee notified of the department's findings to either accept the determination of the department or to make a written request for a hearing on that determination, no later than 20 days after the notice is received. (c) Requires the commissioner or the commissioner's designee, if the employee notified of the violation accepts the determination of the department or fails to timely respond to the notice, to issue an order approving the determination and ordering that the incident of misconduct be recorded in the registry under Section 253.007. Sec. 253.004. HEARING; ORDER. (a) Sets requirements for the department if the employee requests a hearing. (b) Requires the hearings examiner to make findings of fact and conclusions of law and to promptly issue a proposal for decision as to the occurrence of the violation to the commissioner or the commissioner's designee. (c) Authorizes the commissioner or the commissioner's designee by order to find that an act of misconduct has occurred, based on the findings of fact and conclusions of law and the recommendations of the hearings examiner. Requires the commissioner or the commissioner's designee, if the commissioner or the commissioner's designee finds that an act of misconduct has occurred, to issue an order approving the determination and ordering that the incident of misconduct be recorded in the registry under Section 253.007. Sec. 253.005. NOTICE; JUDICIAL REVIEW. (a) Requires the department to give notice of the order under Section 253.004 to the employee who is alleged to have committed the act of misconduct. Specifies provisions for the notice. (b) Authorizes the employee, no later than 30 days after the decision is final as provided by Chapter 2001 (Administrative Procedure), Government Code, to file a petition for judicial review contesting the finding of an act of misconduct. (c) Sets forth that judicial review of the order is instituted by filing a petition as provided by Subchapter G (Contested Cases; Judicial Review), Chapter 2001, Government Code, and is under the substantial evidence rule. (d) Requires the department, if the court sustains the finding of the occurrence of an act of misconduct, to keep the incident listed in the registry. Requires the court, if the court does not sustain the finding of the occurrence of an act of misconduct, to order the department to remove the incident from the registry. Sec. 253.006. INFORMAL PROCEEDINGS. Requires the department by rule to adopt procedures governing informal proceedings held in compliance with Section 2001.056 (Informal Disposition of Contested Case), Government Code. Sec. 253.007. EMPLOYEE MISCONDUCT REGISTRY. (a) Requires the department, if an employee abuses, neglects, or exploits a consumer of a facility or misappropriates a consumer's property, to 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 of the act of misconduct, and a description of the act of misconduct. (b) Requires the department to make the registry available to the public. Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Requires a facility, before the facility may employ a person who will have direct working contact with a consumer, to search the registry to determine whether the person has abused, neglected, or exploited a consumer of a facility. (b) Prohibits a facility from employing a person who has abused, neglected, or exploited a consumer of a facility. SECTION 3.Effective date: September 1, 1999, and applies only to an act of misconduct that occurs on or after that date. SECTION 4.Emergency clause.