HBA-MPM C.S.S.B. 1245 77(R) BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 1245 By: Moncrief Human Services 6/28/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, the direct care staff of home and community support services agencies are not on the list of employees covered by the Texas Department of Human Services (DHS) employee misconduct registry (EMR). This exclusion may prevent home health agencies and other long-term care providers from discovering whether a potential employee who worked in the home health care field has a record of abuse or neglect against a client. C.S.S.B. 1245 adds direct care staff employed by home health agencies to the list of employees covered by the EMR. The bill also authorizes facilities that serve the elderly or disabled to obtain criminal history information directly from the Department of Public Safety. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly granted to the Department of Protective and Regulatory Services in SECTION 1 (Sections 48.402 and 48.407, Human Resources Code) of this bill. ANALYSIS C.S.S.B. 1245 amends the Human Resources Code to set forth provisions relating to investigations and protective services for elderly and disabled persons by the Department of Protective and Regulatory Services (PRS). If after an investigation PRS confirms or validates the occurrence of abuse, neglect, or exploitation that constitutes reportable conduct by an unlicensed employee of a home and community support services agency who provides personal care services (employee), the bill requires PRS to forward the finding to the Texas Department of Human Services (DHS) to be recorded in the employee misconduct registry (EMR) (Sec. 48.403). PRS is required to give written notice of its findings to the employee. The bill provides that no later than the 30th day after the employee receives the notice, the employee is authorized to accept the finding or make a written request for a hearing on the finding. If the employee accepts the finding or fails to respond to the notice in a timely manner, the executive director of PRS or the executive director's designee (executive director) is required to issue an order approving the finding and ordering that PRS's findings be forwarded to DHS to be recorded in the EMR (Sec. 48.404). If the employee requests a hearing, PRS is required to set the hearing, give written notice of the hearing to the employee, and designate a hearings examiner. The bill requires the hearings examiner to make findings of fact and conclusions of law and promptly issue to the executive director a proposal for decision as to the occurrence of the reportable conduct. Based on the findings, conclusions, and recommendations of the hearings examiner, the executive director is authorized by order to find that reportable conduct has occurred, in which case the executive director is required to issue an order approving the finding (Sec. 48.405). PRS is required to give notice of the order to the employee alleged to have committed the reportable conduct. The bill authorizes the employee to file a petition for judicial review contesting the finding no later than 30 days after the date the decision becomes final. PRS is required to send a record of its findings to DHS to record in the EMR if the employee does not request a judicial review. If the court upon judicial review sustains the finding of the occurrence of reportable conduct, PRS is required to forward the finding to DHS to record in the EMR (Sec. 48.406). The bill requires PRS to adopt by rule procedures governing informal proceedings of a contested case in compliance with the Administrative Procedure Act (Sec. 48.407). C.S.S.B. 1245 sets forth the information that PRS is required to provide DHS when forwarding a finding of reportable conduct and that PRS is authorized to forward to DHS if a governmental agency of another state or the federal government finds that an employee has committed an act of reportable conduct (Sec. 48.408). C.S.S.B. 1245 amends the Health and Safety Code to require DHS on receipt of a finding by PRS to record the information in the EMR (Sec. 253.0075). DHS is authorized to remove the person from the EMR if after receiving a written request from the person DHS determines that the person does not meet the requirements for inclusion in the EMR (Sec. 253.010). The bill includes a home and community support services agency among those entities subject to EMR requirements regarding verification of employability and employee notification (Secs. 253.008 and 253.009). The bill authorizes facilities that serve the elderly or disabled (facilities) to obtain criminal history information relating to a person who is an applicant for employment or an employee at a facility directly from the Department of Public Safety (DPS). The bill includes a facility that provides home and community support services among the facilities for purposes of obtaining criminal history for an applicant for employment of or an employee in a position that has direct contact with a consumer (Sec. 250.002). The bill prohibits a facility from employing a person in any capacity, and not just in a position involving direct contact with a consumer if the facility determines as a result of a criminal history check that a person has been convicted of certain offenses (Sec. 250.003 and 250.006). The bill specifies that identifying information of an employee in a covered facility may be submitted electronically or on disk to DPS to obtain the person's criminal conviction record (Sec. 250.004). C.S.S.B. 1245 includes a conviction under the laws of another state, federal law, or the Uniform Code of Military Justice for an offense containing elements that are substantially similar to the elements of an offense listed in current law among the offenses that prohibit a person from being employed in a facility (Sec. 250.006). The bill amends the Human Resources Code to authorize PRS to adopt rules to further define reportable conduct, in addition to the definition provided in the bill (Sec. 48.402). EFFECTIVE DATE On passage, or if the Act does not receive the necessary vote, the Act takes effect September 1, 2001. Provisions requiring PRS to forward a finding of reportable conduct by an employee of a home and community support services agency to the Texas Department of Human Services for inclusion in the employee misconduct registry take effect January 1, 2002. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 1245 differs from the original by making specific provisions regarding reportable conduct by an employee of a home and community support services agency effective January 1, 2002 rather than making the entire bill effective on passage.