HBA-NLM C.S.H.B. 1237 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1237 By: Naishtat Human Services 4/4/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Current law provides protection against retaliation for employees and residents who initiate or cooperate with any investigation of nursing home operators and other employees of these facilities. However, the statute does not specifically extend this protection to contract employees, and volunteers. C.S.H.B. 1237 provides protection against retaliation for volunteers who file a grievance or complaint, cooperate in an investigation, or report a violation of law involving the care, services, or conditions of a nursing home facility. 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 242.133, Health and Safety Code, as follows: Sec. 242.133. New title: RETALIATION AGAINST EMPLOYEES PROHIBITED (a) Defines "employee." (b) Expands the existing provisions regarding an employee's cause of action against an institution, or the owner or another employee of the institution, to include reporting to the employee's supervisor, an administrator of the institution, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of this chapter or a rule adopted under this chapter. Deletes language regarding a report or complaint for reporting the abuse or neglect or other complaint to the person's supervisors. Makes nonsubstantive changes. (c) Redesignated from existing Subsection (b). Makes no change. (d) Redesignated from existing Subsection (c). Provides that a person whose employment is suspended or terminated is entitled to appropriate injunctive relief. (e) Redesignated from existing Subsection (d). Updates references to the Texas Workforce Commission (commission), previously known as the Texas Employment Commission. (f)-(g) Redesignated from existing Subsections (e)-(f). Makes no change. (h) Redesignated from existing Subsection (g). Makes a conforming change. SECTION 2. Amends Section 242.1335, Health and Safety Code, as follows: Sec. 242.1335. New title: RETALIATION AGAINST VOLUNTEERS AND RESIDENTS. (a) Provides that an institution may not retaliate or discriminate against a volunteer or a resident because the volunteer, the resident, the resident's guardian, or any other person makes a complaint or files a grievance concerning the facility, reports a violation of law, including a violation of this chapter or a rule adopted under this chapter, or initiates or cooperates in an investigation or proceeding of a governmental entity relating to care, services, or conditions at the institution. Makes conforming and nonsubstantive changes. (b) Includes the greater of $1,000 or actual damages including damages for mental anguish if an injury other than mental anguish is not shown among the list of items for which a volunteer or a resident is entitled to sue under the existing provisions of this subsection. (c) Makes conforming changes. SECTION 3. Amends Section 242.042, Health and Safety Code, by amending Subsection (a) and by adding Subsection (d), as follows: (a) Includes among the list of items that each institution is required to prominently and conspicuously post for display in a public area of the institution that is readily available to residents, employees, and visitors, a notice that employees, other staff, and residents are protected from discrimination or retaliation as provided by Sections 242.133 and 242.1335. Makes nonsubstantive changes. (d) Provides that the notice required above must be posted in English and a second language as required by the Texas Department of Human Services (department) rule. SECTION 4. Makes application of this Act prospective. SECTION 5. Effective date: September 1, 1999. SECTION 6. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 1237 modifies the original by changing the caption to specify that this Act concerns suits for retaliation against volunteers, rather than nonemployees, and employees of nursing homes. C.S.H.B. 1237 modifies the original in SECTION 1 (Section 242.133, Health and Safety Code) by adding completely new text for Subsection (a), to define "employee." This substitute modifies the original in proposed Subsection (c), redesignated from existing Subsection (b), by providing that a person whose employment is suspended or terminated is entitled to appropriate injunctive relief, rather than reinstatement in the person's former position and reinstatement of lost fringe benefits or seniority rights. In proposed new Subsection(e), redesignated from existing Subsection (d), this substitute deletes the proposed 90 increase in the amount of time a petitioner has after suspension or termination in which to bring a suit or notify the Texas Workforce Commission of intent to sue. This substitute modifies the original to make conforming changes relating to a volunteer, rather than to a nonemployee. C.S.H.B. 1237 modifies the original in SECTION 2 (Section 242.1335, Health and Safety Code) by changing the section title to read "RETALIATION AGAINST VOLUNTEERS AND RESIDENTS." This substitute modifies the original by including including as actual damages, damages for mental anguish if an injury other than mental anguish is not shown, among the list of items for which a volunteer or a resident is entitled to sue under the existing provisions of this subsection. This substitutes deletes the proposed entitlement of damages for lost wages if the nonemployee's employment was suspended or terminated. This substitute modifies the original to make conforming changes relating to a volunteer, rather than to a nonemployee.