CHAPTER 250. NURSE AIDE REGISTRY AND CRIMINAL HISTORY CHECKS OF EMPLOYEES AND APPLICANTS FOR EMPLOYMENT IN CERTAIN FACILITIES SERVING THE ELDERLY, PERSONS WITH DISABILITIES, OR PERSONS WITH TERMINAL I
HEALTH AND SAFETY CODE
TITLE 4. HEALTH FACILITIES
SUBTITLE B. LICENSING OF HEALTH FACILITIES
CHAPTER 250. NURSE AIDE REGISTRY AND CRIMINAL HISTORY CHECKS OF
EMPLOYEES AND APPLICANTS FOR EMPLOYMENT IN CERTAIN FACILITIES
SERVING THE ELDERLY, PERSONS WITH DISABILITIES, OR PERSONS WITH
TERMINAL ILLNESSES
Sec. 250.001. DEFINITIONS. In this chapter:
(1) "Nurse aide registry" means a list maintained by the Texas
Department of Human Services of nurse aides under the Omnibus
Budget Reconciliation Act of 1987 (Pub. L. No. 100-203).
(2) "Direct contact with a consumer" means any contact with a
resident or client in a facility covered by this chapter.
(3) "Facility" means:
(A) a nursing home, custodial care home, or other institution
licensed by the Department of Aging and Disability Services under
Chapter 242;
(B) an assisted living facility licensed by the Department of
Aging and Disability Services under Chapter 247;
(C) a home and community support services agency licensed under
Chapter 142;
(D) an adult day care facility licensed by the Department of
Aging and Disability Services under Chapter 103, Human Resources
Code;
(E) a facility for persons with mental retardation licensed
under Chapter 252;
(F) an adult foster care provider that contracts with the
Department of Aging and Disability Services;
(G) a facility that provides mental health services and that is
operated by or contracts with the Department of State Health
Services;
(H) a local mental health or mental retardation authority
designated under Section 533.035;
(I) a person exempt from licensing under Section 142.003(a)(19);
or
(J) a special care facility licensed by the Department of State
Health Services under Chapter 248.
(4) "Private agency" means a person engaged in the business of
obtaining criminal history checks on behalf of a facility.
(5) "Regulatory agency" means a state agency referred to in
Subdivision (3).
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 831, Sec. 1, eff. June
16, 1995; Acts 1999, 76th Leg., ch. 233, Sec. 3, eff. Sept. 1,
1999; Acts 1999, 76th Leg., ch. 1209, Sec. 2, eff. Sept. 1, 1999;
Acts 2003, 78th Leg., ch. 198, Sec. 2.198, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1189, Sec. 2, eff. September 1, 2009.
Sec. 250.002. INFORMATION OBTAINED BY FACILITY, REGULATORY
AGENCY, OR PRIVATE AGENCY. (a) A facility, a regulatory agency,
or a private agency on behalf of a facility is entitled to obtain
from the Department of Public Safety of the State of Texas
criminal history record information maintained by the Department
of Public Safety that relates to a person who is:
(1) an applicant for employment at a facility other than a
facility licensed under Chapter 142;
(2) an employee of a facility other than a facility licensed
under Chapter 142; or
(3) an applicant for employment at or an employee of a facility
licensed under Chapter 142 whose employment duties would or do
involve direct contact with a consumer in the facility.
(b) A facility may:
(1) pay a private agency to obtain criminal history record
information for an applicant or employee described by Subsection
(a) directly from the Department of Public Safety of the State of
Texas; or
(2) obtain the information directly from the Department of
Public Safety.
(c) The private agency shall forward criminal history record
information received under this section to the facility
requesting the information.
(d) A regulatory agency may adopt rules relating to the
processing of information requested or obtained under this
chapter.
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 831, Sec. 1, eff. June
16, 1995; Acts 2001, 77th Leg., ch. 1025, Sec. 3, eff. Sept. 1,
2001; Acts 2001, 77th Leg., ch. 1267, Sec. 2, eff. Sept. 1, 2001.
Sec. 250.003. VERIFICATION OF EMPLOYABILITY; ANNUAL SEARCH;
DISCHARGE. (a) A facility may not employ an applicant:
(1) if the facility determines, as a result of a criminal
history check, that the applicant has been convicted of an
offense listed in this chapter that bars employment or that a
conviction is a contraindication to employment with the consumers
the facility serves;
(2) if the applicant is a nurse aide, until the facility further
verifies that the applicant is listed in the nurse aide registry;
and
(3) until the facility verifies that the applicant is not
designated in the registry maintained under this chapter or in
the employee misconduct registry maintained under Section 253.007
as having a finding entered into the registry concerning abuse,
neglect, or mistreatment of a consumer of a facility, or
misappropriation of a consumer's property.
Text of subsection as added by Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 7
(a-1) Except for an applicant for employment at or an employee
of a facility licensed under Chapter 242 or 247, a person
licensed under another law of this state is exempt from the
requirements of this chapter.
Text of subsection as added by Acts 2009, 81st Leg., R.S., Ch.
436, Sec. 1
(a-1) If a facility employs a person pending a criminal history
check, the facility shall ensure that the person has no direct
contact with a consumer until the facility obtains the person's
criminal history record information and verifies the person's
employability under Section 250.006.
(b) The facility may not employ an applicant covered by
Subsection (a), except that in an emergency requiring immediate
employment, a facility may hire on a temporary or interim basis a
person not listed in the registry pending the results of a
criminal conviction check, which must be requested:
(1) within 72 hours of employment; or
(2) if the facility is licensed under Chapter 242 or 247, within
24 hours of employment.
(c) A facility shall immediately discharge any employee who is
designated in the nurse aide registry or the employee misconduct
registry established under Chapter 253 as having committed an act
of abuse, neglect, or mistreatment of a consumer of a facility,
or misappropriation of a consumer's property, or whose criminal
history check reveals conviction of a crime that bars employment
or that the facility determines is a contraindication to
employment as provided by this chapter.
(d) In addition to the initial verification of employability, a
facility shall:
(1) annually search the nurse aide registry maintained under
this chapter and the employee misconduct registry maintained
under Section 253.007 to determine whether any employee of the
facility is designated in either registry as having abused,
neglected, or exploited a resident or consumer of a facility or
an individual receiving services from a facility; and
(2) maintain in each employee's personnel file a copy of the
results of the search conducted under Subdivision (1).
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Renumbered from Health & Safety Code Sec. 250.002 and
amended by Acts 1995, 74th Leg., ch. 831, Sec. 1, eff. June 16,
1995. Amended by Acts 2001, 77th Leg., ch. 1025, Sec. 4, eff.
Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1267, Sec. 3, eff. Sept.
1, 2001; Acts 2003, 78th Leg., ch. 911, Sec. 1, eff. June 20,
2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
436, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 6, eff. June 19, 2009.
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 7, eff. June 19, 2009.
Sec. 250.004. CRIMINAL HISTORY RECORD OF EMPLOYEES. (a)
Identifying information of an employee in a covered facility
shall be submitted electronically, on disk, or on a typewritten
form to the Department of Public Safety to obtain the person's
criminal conviction record when the person applies for employment
and at other times as the facility may determine appropriate. In
this subsection, "identifying information" includes:
(1) the complete name, race, and sex of the employee;
(2) any known identifying number of the employee, including
social security number, driver's license number, or state
identification number; and
(3) the employee's date of birth.
(b) If the Department of Public Safety reports that a person has
a criminal conviction of any kind, the conviction shall be
reviewed by the facility to determine if the conviction may bar
the person from employment in a facility under Section 250.006 or
if the conviction may be a contraindication to employment.
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Renumbered from Health & Safety Code Sec. 250.003 and
amended by Acts 1995, 74th Leg., ch. 831, Sec. 1, eff. June 16,
1995; Acts 1999, 76th Leg., ch. 629, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 1025, Sec. 5, eff. Sept. 1,
2001; Acts 2001, 77th Leg., ch. 1267, Sec. 4, eff. Sept. 1, 2001.
Sec. 250.005. NOTICE AND OPPORTUNITY TO BE HEARD CONCERNING
ACCURACY OF INFORMATION. (a) If a facility believes that a
conviction may bar a person from employment in a facility under
Section 250.006 or may be a contraindication to employment, the
facility shall notify the applicant or employee.
(b) The Department of Public Safety of the State of Texas shall
give a person notified under Subsection (a) the opportunity to be
heard concerning the accuracy of the criminal history record
information and shall notify the facility if inaccurate
information is discovered.
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995. Renumbered from Health & Safety Code Sec.
250.004 and amended by Acts 1995, 74th Leg., ch. 831, Sec. 1,
eff. June 16, 1995.
Sec. 250.006. CONVICTIONS BARRING EMPLOYMENT. (a) A person for
whom the facility is entitled to obtain criminal history record
information may not be employed in a facility if the person has
been convicted of an offense listed in this subsection:
(1) an offense under Chapter 19, Penal Code (criminal homicide);
(2) an offense under Chapter 20, Penal Code (kidnapping and
unlawful restraint);
(3) an offense under Section 21.02, Penal Code (continuous
sexual abuse of young child or children), or Section 21.11, Penal
Code (indecency with a child);
(4) an offense under Section 22.011, Penal Code (sexual
assault);
(5) an offense under Section 22.02, Penal Code (aggravated
assault);
(6) an offense under Section 22.04, Penal Code (injury to a
child, elderly individual, or disabled individual);
(7) an offense under Section 22.041, Penal Code (abandoning or
endangering child);
(8) an offense under Section 22.08, Penal Code (aiding suicide);
(9) an offense under Section 25.031, Penal Code (agreement to
abduct from custody);
(10) an offense under Section 25.08, Penal Code (sale or
purchase of a child);
(11) an offense under Section 28.02, Penal Code (arson);
(12) an offense under Section 29.02, Penal Code (robbery);
(13) an offense under Section 29.03, Penal Code (aggravated
robbery);
(14) an offense under Section 21.08, Penal Code (indecent
exposure);
(15) an offense under Section 21.12, Penal Code (improper
relationship between educator and student);
(16) an offense under Section 21.15, Penal Code (improper
photography or visual recording);
(17) an offense under Section 22.05, Penal Code (deadly
conduct);
(18) an offense under Section 22.021, Penal Code (aggravated
sexual assault);
(19) an offense under Section 22.07, Penal Code (terroristic
threat);
(20) an offense under Section 33.021, Penal Code (online
solicitation of a minor);
(21) an offense under Section 34.02, Penal Code (money
laundering);
(22) an offense under Section 35A.02, Penal Code (Medicaid
fraud);
(23) an offense under Section 42.09, Penal Code (cruelty to
animals); or
(24) 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 by this subsection.
(b) A person may not be employed in a position the duties of
which involve direct contact with a consumer in a facility before
the fifth anniversary of the date the person is convicted of:
(1) an offense under Section 22.01, Penal Code (assault), that
is punishable as a Class A misdemeanor or as a felony;
(2) an offense under Section 30.02, Penal Code (burglary);
(3) an offense under Chapter 31, Penal Code (theft), that is
punishable as a felony;
(4) an offense under Section 32.45, Penal Code (misapplication
of fiduciary property or property of a financial institution),
that is punishable as a Class A misdemeanor or a felony;
(5) an offense under Section 32.46, Penal Code (securing
execution of a document by deception), that is punishable as a
Class A misdemeanor or a felony;
(6) an offense under Section 37.12, Penal Code (false
identification as peace officer); or
(7) an offense under Section 42.01(a)(7), (8), or (9), Penal
Code (disorderly conduct).
(c) In addition to the prohibitions on employment prescribed by
Subsections (a) and (b), a person for whom a facility licensed
under Chapter 242 or 247 is entitled to obtain criminal history
record information may not be employed in a facility licensed
under Chapter 242 or 247 if the person has been convicted:
(1) of an offense under Section 30.02, Penal Code (burglary); or
(2) 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 under
Section 30.02, Penal Code.
(d) For purposes of this section, a person who is placed on
deferred adjudication community supervision for an offense listed
in this section, successfully completes the period of deferred
adjudication community supervision, and receives a dismissal and
discharge in accordance with Section 5(c), Article 42.12, Code of
Criminal Procedure, is not considered convicted of the offense
for which the person received deferred adjudication community
supervision.
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.39, eff.
Sept. 1, 1995. Renumbered from Health & Safety Code Sec.
250.005 and amended by Acts 1995, 74th Leg., ch. 831, Sec. 1,
eff. June 16, 1995. Amended by Acts 1997, 75th Leg., ch. 482,
Sec. 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1159, Sec.
1.33, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1025, Sec. 6,
eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1267, Sec. 5, eff.
Sept. 1, 2001; Acts 2003, 78th Leg., ch. 911, Sec. 2, eff. June
20, 2003; Acts 2003, 78th Leg., ch. 1084, Sec. 1, eff. Sept. 1,
2003; Acts 2003, 78th Leg., ch. 1209, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
593, Sec. 3.44, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch.
971, Sec. 1, eff. September 1, 2007.
Sec. 250.007. RECORDS PRIVILEGED. (a) The criminal history
records are for the exclusive use of the regulatory agency, the
requesting facility, the private agency on behalf of the
requesting facility, and the applicant or employee who is the
subject of the records.
(b) All criminal records and reports and the information they
contain that are received by the regulatory agency or private
agency for the purpose of being forwarded to the requesting
facility are privileged information.
(c) The criminal records and reports and the information they
contain may not be released or otherwise disclosed to any person
or agency except on court order or with the written consent of
the person being investigated.
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 831, Sec. 1, eff. June
16, 1995.
Sec. 250.008. CRIMINAL PENALTY. (a) A person commits an
offense if the person releases or otherwise discloses any
information received under this chapter except as prescribed by
Section 250.007(b) or (c).
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 831, Sec. 1, eff. June
16, 1995.
Sec. 250.009. CIVIL LIABILITY. (a) A facility or an officer or
employee of a facility is not civilly liable for failure to
comply with this chapter if the facility makes a good faith
effort to comply.
(b) A regulatory agency is not civilly liable to a person for
criminal history record information forwarded to a requesting
facility in accordance with this chapter.
Added by Acts 1993, 73rd Leg., ch. 747, Sec. 25, eff. Sept. 1,
1993. Amended by Acts 1995, 74th Leg., ch. 831, Sec. 1, eff. June
16, 1995.