2005 Texas Health & Safety Code CHAPTER 253. EMPLOYEE MISCONDUCT REGISTRY

HEALTH & SAFETY CODE

CHAPTER 253. EMPLOYEE MISCONDUCT REGISTRY


	§ 253.001. DEFINITIONS.  In this chapter:                                   
		(1)  "Commissioner" means the commissioner of human 
services.               
		(2)  "Department" means the Texas Department of 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;
			(C)  is not licensed by an agency of the state to 
perform the services the employee performs at the facility;  and
			(D)  is not a nurse aide employed by a nursing 
facility.                   
		(4)  "Facility" means:                                                        
			(A)  a facility licensed by the department;  or                              
			(B)  an adult foster care provider that contracts 
with the department.     
		(5)  "Reportable conduct" includes:                                           
			(A)  abuse or neglect that causes or may cause 
death or harm to a resident or consumer of a facility;
			(B)  sexual abuse of a resident or consumer of a 
facility;                 
			(C)  financial exploitation of 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 a resident or consumer of a facility.

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 6, eff. Sept. 1, 
2001.


	§ 253.002. INVESTIGATION BY DEPARTMENT.  If the 
department receives a report that an employee of a facility 
committed reportable conduct, the department shall investigate the 
report to determine whether the employee has committed the 
reportable conduct.

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 7, eff. Sept. 1, 
2001.


	§ 253.003. DETERMINATION;  NOTICE.  (a) If, after an 
investigation, the department determines that the reportable 
conduct occurred, the department shall give written notice of the 
department's findings.  The notice must include:
		(1)  a brief summary of the department's findings;  and                       
		(2)  a statement of the person's right to a hearing on 
the occurrence of the reportable conduct.
	(b)  Not later than the 30th day after the date on which the 
notice is received, the employee notified may accept the 
determination of the department made under this section or may make 
a written request for a hearing on that determination.
	(c)  If the employee notified of the violation accepts the 
determination of the department or fails to timely respond to the 
notice, the commissioner or the commissioner's designee shall issue 
an order approving the determination and ordering that the 
reportable conduct be recorded in the registry under Section 
253.007.

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 8, eff. Sept. 1, 
2001.


	§ 253.004. HEARING;  ORDER.  (a) If the employee requests 
a hearing, the department 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 or 
the commissioner'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 or 
the commissioner's designee by order may find that the reportable 
conduct has occurred.  If the commissioner or the commissioner's 
designee finds that the reportable conduct has occurred, the 
commissioner or the commissioner's designee shall issue an order 
approving the determination.

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 9, eff. Sept. 1, 
2001.


	§ 253.005. NOTICE;  JUDICIAL REVIEW.  (a) The department 
shall give notice of the order under Section 253.004 to the employee 
alleged to have committed the reportable conduct. The notice must 
include:
		(1)  separate statements of the findings of fact and 
conclusions of law;    
		(2)  a statement of the right of the employee to 
judicial review of the order;  and
		(3)  a statement that the reportable conduct will be 
recorded in the registry under Section 253.007 if:
			(A)  the employee does not request judicial review 
of the determination;  or
			(B)  the determination is sustained by the court.                            
	(b)  Not later than the 30th day after the date on which 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 determination, the 
department shall record the reportable conduct in the registry 
under Section 253.007.
	(c)  Judicial review of the order:                                             
		(1)  is instituted by filing a petition as provided by 
Subchapter G, Chapter 2001, Government Code;  and
		(2)  is under the substantial evidence rule.                                  
	(d)  If the court sustains the finding of the occurrence of 
the reportable conduct, the department shall record the reportable 
conduct in the registry under Section 253.007.

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 10, eff. Sept. 1, 
2001.


	§ 253.006. INFORMAL PROCEEDINGS.  The department by rule 
shall adopt procedures governing informal proceedings held in 
compliance with Section 2001.056, Government Code.

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.           


	§ 253.007. EMPLOYEE MISCONDUCT REGISTRY.  (a) If an 
employee 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.
	(b)  If an agency of another state or the federal government 
finds that an employee has committed an act that constitutes 
reportable conduct, the department may make a record in the 
employee misconduct registry 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, and a 
description of the act.
	(c)  The department shall make the registry available to the 
public.         

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 11, eff. Sept. 1, 
2001.


	§ 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY 
DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES.  On receipt of a 
finding of reportable conduct by the Department of Protective and 
Regulatory Services under Subchapter I, Chapter 48, Human Resources 
Code, the department shall record the information in the employee 
misconduct registry.

Added by Acts 2001, 77th Leg., ch. 1267, § 14, eff. Sept. 1, 
2001.       


	§ 253.008. VERIFICATION OF EMPLOYABILITY.  (a) Before a 
facility, an agency licensed under Chapter 142, or a person exempt 
from licensing under Section 142.003(a)(19) may hire an employee, 
the facility, agency, or person shall search the employee 
misconduct registry under this chapter and the nurse aide registry 
maintained under 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 an 
individual receiving services from an agency licensed under Chapter 
142 or from a person exempt from licensing under Section 
142.003(a)(19).
	(b)  A facility, agency licensed under Chapter 142, or 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 an 
individual receiving services from an agency licensed under Chapter 
142 or from a person exempt from licensing under Section 
142.003(a)(19).

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 12, eff. Sept. 1, 
2001;  Acts 2003, 78th Leg., ch. 198, § 2.68, eff. Sept. 1, 2003.


	§ 253.009. NOTIFICATION.  (a) Each facility, each agency 
licensed under Chapter 142, and each person exempt from licensing 
under Section 142.003(a)(19) shall notify its employees in a manner 
prescribed by the 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 department shall adopt rules to implement this 
section.             

Added by Acts 1999, 76th Leg., ch. 629, § 2, eff. Sept. 1, 1999.  
Amended by Acts 2001, 77th Leg., ch. 1267, § 13, eff. Sept. 1, 
2001;  Acts 2003, 78th Leg., ch. 198, § 2.69, eff. Sept. 1, 2003.


	§ 253.010. REMOVAL FROM REGISTRY.  The department may 
remove a person from the employee misconduct registry if, after 
receiving a written request from the person, the department 
determines that the person does not meet the requirements for 
inclusion in the employee misconduct registry.

Added by Acts 2001, 77th Leg., ch. 1267, § 14, eff. Sept. 1, 
2001.