CHAPTER 253. EMPLOYEE MISCONDUCT REGISTRY
HEALTH AND SAFETY CODE
TITLE 4. HEALTH FACILITIES
SUBTITLE B. LICENSING OF HEALTH FACILITIES
CHAPTER 253. EMPLOYEE MISCONDUCT REGISTRY
Sec. 253.001. DEFINITIONS. In this chapter:
(1) "Commissioner" means the commissioner of aging and
disability services.
(2) "Department" means the Department of Aging and Disability
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; and
(C) is not licensed by an agency of the state to perform the
services the employee performs at the facility or is a nurse aide
employed by a facility.
(3-a) "Executive commissioner" means the executive commissioner
of the Health and Human Services Commission.
(4) "Facility" means:
(A) a facility:
(i) licensed by the department; or
(ii) licensed under Chapter 252;
(B) an adult foster care provider that contracts with the
department; or
(C) a home and community support services agency licensed by the
department under Chapter 142.
(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, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 6, eff.
Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
809, Sec. 21, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
284, Sec. 15, eff. June 11, 2009.
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 8, eff. June 19, 2009.
Sec. 253.002. INVESTIGATION BY DEPARTMENT. (a) If the
department receives a report that an employee of a facility,
other than a facility licensed under Chapter 252, committed
reportable conduct, the department shall investigate the report
to determine whether the employee has committed the reportable
conduct.
(b) If the Department of Aging and Disability Services receives
a report that an employee of a facility licensed under Chapter
252 committed reportable conduct, the department shall forward
that report to the Department of Family and Protective Services
for investigation.
Added by Acts 1999, 76th Leg., ch. 629, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 7, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
284, Sec. 16, eff. June 11, 2009.
Sec. 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, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 8, eff.
Sept. 1, 2001.
Sec. 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, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 9, eff.
Sept. 1, 2001.
Sec. 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, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 10, eff.
Sept. 1, 2001.
Sec. 253.0055. REMOVAL OF NURSE AIDE FINDING. If a finding of
reportable conduct is the basis for an entry in the nurse aide
registry maintained under Chapter 250 and the entry is
subsequently removed from the nurse aide registry, the
commissioner or the commissioner's designee shall immediately
remove the record of reportable conduct from the employee
misconduct registry maintained under Section 253.007.
Added by Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 9, eff. June 19, 2009.
Sec. 253.006. INFORMAL PROCEEDINGS. The executive commissioner
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, Sec. 2, eff. Sept. 1,
1999.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 10, eff. June 19, 2009.
Sec. 253.007. EMPLOYEE MISCONDUCT REGISTRY. (a) The department
shall establish an employee misconduct registry. If the
department in accordance with this chapter finds that an employee
of a facility has committed 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, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 11, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 11, eff. June 19, 2009.
Sec. 253.0075. RECORDING REPORTABLE CONDUCT REPORTED BY
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES. On receipt of a
finding of an employee's reportable conduct by the Department of
Family and Protective Services under Subchapter I, Chapter 48,
Human Resources Code, the department shall record the information
in the employee misconduct registry in accordance with Section
253.007.
Added by Acts 2001, 77th Leg., ch. 1267, Sec. 14, eff. Sept. 1,
2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 12, eff. June 19, 2009.
Sec. 253.008. VERIFICATION OF EMPLOYABILITY; ANNUAL SEARCH. (a)
Before a facility as defined in this chapter or an agency as
defined in Section 48.401, Human Resources Code, may hire an
employee, the facility or agency shall search the employee
misconduct registry under this chapter and the nurse aide
registry maintained under Chapter 250 as required by 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 agency or an individual
receiving services from a facility or agency.
(b) A facility or agency 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 agency or an individual
receiving services from a facility or agency.
(c) In addition to the initial verification of employability, a
facility or agency shall:
(1) annually search the employee misconduct registry and the
nurse aide registry maintained under Chapter 250 to determine
whether any employee of the facility or agency is designated in
either registry as having abused, neglected, or exploited a
resident or consumer of a facility or agency or an individual
receiving services from a facility or agency; and
(2) maintain in each employee's personnel file a copy of the
results of the search conducted under Subdivision (1).
Added by Acts 1999, 76th Leg., ch. 629, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 12, eff.
Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, Sec. 2.68, eff.
Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
809, Sec. 22, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 13, eff. June 19, 2009.
Sec. 253.009. NOTIFICATION. (a) Each facility as defined in
this chapter and each agency as defined in Section 48.401, Human
Resources Code, shall notify its employees in a manner prescribed
by the Department of Aging and Disability Services:
(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 executive commissioner shall adopt rules to implement
this section.
Added by Acts 1999, 76th Leg., ch. 629, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 1267, Sec. 13, eff.
Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, Sec. 2.69, eff.
Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
809, Sec. 23, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
763, Sec. 14, eff. June 19, 2009.
Sec. 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, Sec. 14, eff. Sept. 1,
2001.