(a) As used in this section, an unlicensed applicant
or employee excludes licensed health professionals. A licensed health
professional is an individual who is authorized and holds a license
issued by the State of Texas to practice in the health care field.
This term "licensed health professional" includes, but is not limited
to, a physician, physician assistant, advanced practice registered
nurse, registered nurse, licensed vocational nurse, social worker,
counselor, dietitian, pharmacist, or psychologist.
(b) Each facility shall comply with the provisions
of Health and Safety Code, Chapter 250 (relating to 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).
(c) The facility shall obtain criminal history record
information from the Department of Public Safety (DPS) for all unlicensed
applicants for employment.
(1) A facility shall obtain the information directly
from the DPS or by paying a private agency to obtain criminal history
record information directly from the DPS.
(2) If an applicant has been convicted of an offense
under Health and Safety Code, §250.006 (relating to Convictions
Barring Employment), the facility shall determine whether the conviction
bars the applicant from employment or whether the conviction is a
contraindication to employment with the patients the facility serves.
(3) If a facility determines that a conviction bars
an applicant from employment in a facility, or is a contraindication
to employment, the facility shall notify the applicant.
(4) A facility shall not employ an unlicensed applicant
who has been convicted of an offense listed in Health and Safety Code,
§250.006, if the facility determines that the conviction bars
employment or is a contraindication to employment with the patients
the facility serves.
(d) Before a facility employs any unlicensed applicant,
the facility shall search the nurse aide registry (NAR) and the employee
misconduct registry (EMR) by calling the toll-free number, 1-(800)
452-3934, or by using the Employability Status Search website at
http://www.dads.state.tx.us/providers/employability/esearch.cfm.
(1) The facility shall receive the search results and
verify that an unlicensed applicant is not designated in the NAR or
the EMR as having a finding concerning abuse, neglect, or mistreatment
of a patient, or misappropriation of a patient's property before employing
the applicant.
(2) A facility shall not employ a nurse aide until
the facility verifies that the applicant is listed in the NAR and
verifies that the applicant is not designated in the NAR or the EMR
as having a finding concerning abuse, neglect, or mistreatment of
a patient of a facility, or misappropriation of a patient's property.
(e) In addition to the initial verification of employability,
a facility shall comply with the following requirements for all unlicensed
employees:
(1) conduct criminal history checks;
(2) if the employee is a nurse aide, search the NAR
annually as set forth in subsection (c) of this section to determine
whether the employee is listed in the NAR;
(3) search the NAR and the EMR annually as set forth
in subsection (d) of this section to determine whether any employee
is designated in the NAR or the EMR as having a finding concerning
abuse, neglect, or mistreatment of a patient, or misappropriation
of a patient's property;
(4) maintain in each unlicensed employee's personnel
file a copy of the results of the search conducted under this subsection;
and
(5) provide written information about the EMR to all
unlicensed employees, including information that a person may not
be employed if the person is listed in the EMR.
(f) A facility shall notify any employee if the facility
determines that a conviction bars the employee from employment in
a facility under Health and Safety Code, §250.006, or is a contraindication
to employment.
(g) A facility shall immediately discharge any employee
who is designated in the NAR and the EMR as having committed an act
of abuse, neglect, or mistreatment of a patient of a facility, or
misappropriation of a patient's property.
(h) A facility shall immediately discharge any employee
whose criminal history check reveals conviction of a crime that bars
employment under Health and Safety Code, §250.006, or that the
facility determines is a contraindication to employment.
(i) In an emergency that requires immediate employment,
a facility may hire an applicant on a temporary or interim basis before
obtaining the results of a criminal conviction check.
(1) The facility shall justify and document the emergency.
(2) The facility shall verify that the applicant is
not designated in the NAR or the EMR as having a finding concerning
abuse, neglect, or mistreatment of a patient of a facility, or misappropriation
of a patient's property.
(3) The facility shall verify that a nurse aid applicant
is listed in the NAR.
(4) The facility shall request the DPS criminal conviction
check within 72 hours of employment.
(5) The facility shall ensure that the applicant/employee
has no direct contact with a patient until the facility obtains the
person's criminal history record information and verifies the person's
employability.
(j) The facility shall ensure that the criminal history
records are used exclusively by the facility on behalf of the applicant
or employee who is the subject of the records.
(1) All criminal records and reports and the information
they contain are privileged information.
(2) The facility shall ensure that this information
is not released or otherwise disclosed to any person or agency except
on court order or with the written consent of the person being investigated.
(k) A person commits an offense if the person releases
or otherwise discloses any information received under this chapter
except as allowed in subsection (j) of this section. An offense under
this section is a Class A misdemeanor.
(l) 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.
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