| (a) Subject to subsection (f) of this section, the
Texas Health and Human Services Commission (HHSC) may disqualify an
applicant or licensee from taking an examination required by §555.18
of this chapter (relating to Examinations and Requirements to Take
the Examinations), may deny an initial or renewal application for
licensure, or impose a sanction listed in §555.57 of this chapter
(relating to Schedule of Sanctions) if the applicant or licensee has
been convicted of:
(1) an offense that directly relates to the duties
and responsibilities of a nursing facility administrator (NFA);
(2) an offense listed in Article 42A.054, Code of Criminal
Procedure; or
(3) a sexually violent offense, as defined by Article
62.001, Code of Criminal Procedure.
(b) HHSC considers the following when determining if
a criminal conviction directly relates to the duties, responsibilities,
and job performance of an NFA:
(1) the nature and seriousness of the crime;
(2) the extent to which a license may offer an individual
an opportunity to engage in the same type of criminal activity; and
(3) the relationship of the crime to the ability or
fitness required to perform the duties of an NFA.
(c) HHSC has determined that a conviction of the following
crimes relates to nursing facility administration and reflects an
inability to perform or tendency to inadequately perform as an NFA.
Accordingly, HHSC proposes to deny an application for licensure from
an applicant who has been convicted of any of the following crimes:
(1) intentionally acting as an NFA without a license;
(2) attempting or conspiring to commit or committing
any offense under the following chapters of the Texas Penal Code:
(A) Title 5 (offenses against persons), including homicide,
kidnapping, unlawful restraint, and sexual and assault offenses;
(B) Title 7 (offenses against property), including
arson, criminal mischief, robbery, burglary, criminal trespass, theft,
fraud, computer crimes, telecommunications crimes, money laundering,
and insurance fraud;
(C) Title 9 (offenses against public order and decency),
including disorderly conduct and public indecency; or
(D) Title 10 (offenses against public health, safety,
and morals), including weapons, gambling, conduct affecting public
health, intoxication, and alcoholic beverage offenses;
(3) committing an offense listed in Texas Health and
Safety Code (THSC) §250.006(a) or (c); or
(4) committing an offense listed in THSC §250.006(b)
within the last five years.
(d) If HHSC determines an applicant or licensee has
a criminal conviction that directly relates to the duties and responsibilities
of an NFA, HHSC considers the following in determining whether to
take an action authorized by subsection (a) of this section:
(1) the extent and nature of the person's past criminal
activity;
(2) the age of the person when the crime was committed;
(3) the amount of time that has elapsed since the person's
last criminal activity;
(4) the conduct and work activity of the person before
and after the criminal activity;
(5) evidence of the person's rehabilitation or rehabilitative
effort while incarcerated or after release;
(6) evidence of the person's compliance with any conditions
of community supervision, parole or mandatory supervision; and
(7) other evidence of the person's fitness, including
letters of recommendation.
(e) HHSC may consider other crimes and pertinent information
as a potential basis for denying an initial or renewal application.
(f) Convictions under federal law or the laws of another
state or nation for offenses containing elements similar to offenses
listed in subsection (c) of this section may be a basis for HHSC denying
an initial application or imposing sanctions.
(g) A notice required under subsection (a) of this
section must contain, as applicable:
(1) a statement that the applicant or licensee is disqualified
from receiving the license or being examined for the license because
of the applicant's or licensee's prior conviction of an offense specified
in the notice, as provided in subsection (a)(2) and (a)(3) of this
section; or
(2) a statement that:
(A) the final decision of the licensing authority to
deny the applicant or licensee a license, or the opportunity to be
examined for the license, will be based on the factors listed in subsection
(d) of this section, as provided in subsection (a)(1) of this section;
and
(B) the applicant or licensee has the responsibility
to obtain and provide to HHSC evidence regarding the factors listed
in subsection (d) of this section.
(h) If HHSC suspends or revokes a license, or denies
an applicant or licensee a license or the opportunity to be examined
for a license because of the applicant's or licensee's prior conviction
of an offense, HHSC shall notify the person in writing of:
(1) the reason for the suspension, revocation, denial,
or disqualification including any factor considered under subsection
(b) and (d) of this section that served as the basis for suspension,
revocation, denial, or disqualification;
(2) the procedure for judicial review; and
(3) the earliest date the applicant or licensee may
appeal HHSC's action.
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| Source Note: The provisions of this §555.41 adopted to be effective June 1, 2004, 29 TexReg 4233; amended to be effective June 1, 2009, 34 TexReg 2795; amended to be effective September 1, 2010, 35 TexReg 6832; transferred effective May 1, 2019, as published in the Texas Register April 12, 2019, 44 TexReg 1880; amended to be effective November 14, 2021, 46 TexReg 7791 |
