HBA-DMD S.B. 1678 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1678 By: Bernsen Human Services 5/14/1999 Engrossed BACKGROUND AND PURPOSE Under current law, if a social worker's license expires it may be renewed by paying fees; the social worker does not have to take an updated license examination. Also, the Texas State Board of Social Worker Examiners (board) cannot obtain records when a complaint has been filed against a licensed member, and social workers who report abuse or neglect are not protected from retaliation. S.B. 1678 modifies the requirements for licensure as a social work associate. This bill authorizes the board to impose an administrative penalty on a person who violates a rule or order adopted by the board and authorizes the attorney general to sue in order to collect the penalty. S.B. 1678 authorizes a person to report an incident that puts a client at risk of harm to the appropriate entity and prohibits retaliation against a person who reports a violation. Additionally, this bill allows a person who is alleged to have committed a violation or a person who is retaliated against for filing a complaint to seek attorney's fees and actual and punitive damages. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 50.017, Human Resources Code, as follows: Sec. 50.017. SOCIAL WORK ASSOCIATE. (a) Requires the Texas State Board of Social Worker Examiners (board) to consider a baccalaureate degree in the behavioral or social sciences or in a related field from an accredited educational institution as minimum evidence that an applicant is qualified to be examined for a license as a social work associate. Deletes an associate of arts degree in the behavioral sciences and a reasonable specified number of years of actual and active social work experience as minimum evidence that an applicant is qualified to be examined for a license as a social work associate. Makes conforming changes. SECTION 2. Amends Chapter 50, Human Resources Code, by adding Sections 50.0225-50.0227, as follows: Sec. 50.0225. REPORT OF VIOLATION. Authorizes a person licensed under this chapter, in a written and signed report to the appropriate licensing board, agency, or facility, to report an incident that the person has reasonable cause to believe has exposed a client to substantial risk of harm, including: (1) a failure to provide care that conforms to the minimum standards of acceptable and prevailing professional practice; (2) illegal billing practices; or (3) falsification of records. Sec. 50.0226. REPORTING IMMUNITY. Provides that a person who, without malice, makes a report authorized, or reasonably believed to be authorized, under Section 50.0225 is immune from civil liability, and is prohibited from being subjected by the person's employer to other retaliatory action as a result of making the report. Sec. 50.0227. CAUSE OF ACTION FOR RETALIATION. (a) Authorizes a person named as a defendant in a civil action or subjected by the person's employer to other retaliatory action as a result of filing a report authorized, or reasonably believed to be authorized, under Section 50.0225 to file a counterclaim in the pending action or prove a cause of action in a subsequent suit to recover defense costs, including reasonable attorney's fees and actual and punitive damages, if the suit or retaliatory action is determined to be frivolous, unreasonable, or taken in bad faith. (b) Prohibits a person from suspending, terminating the employment of, disciplining, or discriminating against, a person who makes a report, without malice, under Section 50.0225. (c) Establishes that a person who makes a report under Section 50.0225 has a cause of action against a person who violates Subsection (b). Authorizes the person to recover actual damages, including damages for mental anguish even if no other injury is shown; or $1,000, whichever is greater; exemplary damages; court costs; and reasonable attorney's fees. (d) Entitles a person, in addition to the amount recovered under Subsection (c), whose employment is suspended or terminated in violation of this section, to: (1) reinstatement in the employee's former position or severance pay in an amount equal to three months of the employee's most recent salary; and (2) compensation for wages lost during the period of suspension or termination. (e) Sets forth that a person who brings an action under this section has the burden of proof. Provides that it is a rebuttable presumption that the person's employment was suspended or terminated for making a report under Section 50.0225 if: (1) the person was suspended or terminated within 60 days after the date the report was made; and (2) the person to whom the report that is the subject of the cause of action was made or the court determines that the report was authorized under Section 50.0225, and made without malice. (f) Authorizes an action under this section to be brought in a district court of the county in which the plaintiff resides, the plaintiff was employed by the defendant, or the defendant conducts business. SECTION 3. Amends Section 50.023(e), Human Resources Code, by deleting the provision that authorizes a person to obtain a new license or order of recognition by submitting to reexamination if an examination was originally required and complying with the requirements and procedures for obtaining an original license or order of recognition. SECTION 4. Amends Section 50.028, Human Resources Code, as follows: Sec. 50.028. New Title: CIVIL PENALTY. Subjects a person who violates an order of the board pertaining to the practice of social work to a civil penalty of not less than $50 and not more than $500 for each day of violation. SECTION 5. Amends the heading of Section 50.029, Human Resources Code, as follows: Sec. 50.029. New Title: SUIT FOR CIVIL PENALTY OR INJUNCTIVE RELIEF. SECTION 6. Amends Chapter 50, Human Resources Code, by adding Section 50.0295, as follows: Sec. 50.0295. ADMINISTRATIVE PENALTY. (a) Authorizes the board to impose an administrative penalty on a person licensed under this chapter who violates this chapter or a rule or order adopted under this chapter. (b) Prohibits the amount of the penalty from being less than $50 or exceeding $500 for each violation. Provides that each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. (c) Sets requirements for the amount of the penalty. (d) Sets authorizations for the report issued by the executive director, if the executive director determines that a violation has occurred. (e) Requires the executive director to give written notice of the report to the person, within 14 days after the report is issued. (f) Sets provisions for the notice. (g) Specifies certain authorizations for the person, within 10 days after the person receives the notice. (h) Requires the board by order to approve the determination and impose the recommended penalty, if the person accepts the determination and recommended penalty of the executive director. (i) Requires the executive director, if the person requests a hearing or fails to respond in a timely manner to the notice, to set a hearing and give written notice of the hearing to the person. Requires an administrative law judge of the State Office of Administrative Hearings to hold the hearing. (j) Requires the administrative law judge to make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. (k) Authorizes the board by order, based on the findings of fact, conclusions of law, and proposal for decision, to find that a violation occurred and impose a penalty, or find that a violation did not occur. (l) Provides that a notice of the board's order given to the person must include a statement of the right of the person to judicial review of the order. (m) Sets required actions for the person, within 30 days after the board's order becomes final. (n) Specifies authorizations for persons who file a petition for judicial review within the 30-day period prescribed by Subsection (m). (o) Authorizes the executive director, if the director receives a copy of an affidavit under Subsection (n), to file with the court, within five days after the date the copy is received, a contest to the affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable and to stay the enforcement of the penalty on finding that the alleged facts are true. Provides that the person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond. (p) Authorizes the penalty to be collected, if the person does not pay the penalty and the enforcement of the penalty is not stayed. (q) Authorizes the attorney general to sue in order to collect the penalty. (r) Authorizes the court, if the court sustains the finding that a violation occurred, to uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. (s) Requires the court, if the court does not sustain the finding that a violation occurred, to order that a penalty is not owed. (t) Requires the court, if the person paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, to order that the appropriate amount plus accrued interest be remitted to the person, when the court's judgment becomes final. (u) Sets forth that the interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. (v) Requires the interest to be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted. (w) Requires the court, if the person gave a supersedeas bond and the penalty is not upheld by the court, to order the release of the bond, when the court's judgment becomes final. (x) Requires the court, if the person gave a supersedeas bond and the amount of the penalty is reduced, to order the release of the bond after the person pays the reduced amount. (y) Considers a proceeding to impose the penalty to be a contested case under Chapter 2001 (Administrative Procedure), Government Code. SECTION 7.Effective date: September 1, 1999. Makes application of Sections 50.017, 50.023(e), 50.0225, 50.0226, 50.0227, and 50.0295, Human Resources Code, as amended or added by this Act prospective. SECTION 8.Emergency clause.