| (a) The provisions in this subsection apply to an unlicensed
applicant for employment and an unlicensed employee, if the person's
duties would or do include face-to-face contact with a client.
(1) An agency must conduct a criminal history check
authorized by, and in compliance with, Texas 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) for an unlicensed applicant for employment and an unlicensed
employee.
(2) The agency must not employ an unlicensed applicant
whose criminal history check includes a conviction listed in Texas
Health and Safety Code §250.006 that bars employment, or a conviction
the agency has determined is a contraindication to employment. If
an applicant's or employee's criminal history check includes a conviction
of an offense that is not listed in Texas Health and Safety Code §250.006,
the agency must document its review of the conviction and its determination
of whether the conviction is a contraindication to employment.
(3) Before the agency hires an unlicensed applicant,
or before an unlicensed employee's first face-to-face contact with
a client, the agency must search the nurse aide registry (NAR) and
the employee misconduct registry (EMR) using the HHSC website to determine
if the applicant or employee is listed in either registry as unemployable.
The agency must not employ an unlicensed applicant who is listed as
unemployable in either registry.
(4) The agency must provide written information about
the EMR to an unlicensed employee in compliance with the requirements
of 40 TAC §93.3(c) (relating to Employment and Registry Information).
(5) In addition to the initial verification of employability,
the agency must search the NAR and the EMR to determine if the employee
is listed as unemployable in either registry as follows:
(A) for an employee most recently hired before September
1, 2009, by August 31, 2011, and at least every twelve months thereafter;
and
(B) for an employee most recently hired on or after
September 1, 2009, at least every 12 months.
(6) The agency must immediately discharge an unlicensed
employee whose duties would or do include face-to-face contact with
a client when the agency becomes aware:
(A) that the employee is designated in the NAR or the
EMR as unemployable; or
(B) that the employee's criminal history check reveals
conviction of a crime that bars employment or that the agency has
determined is a contraindication to employment.
(b) The provisions in this subsection apply to an unlicensed
volunteer if the person's duties would or do include face-to-face
contact with a client.
(1) An agency must conduct a criminal history check
before an unlicensed volunteer's first face-to-face contact with a
client of the agency.
(2) The agency must not use the services of an unlicensed
volunteer for duties that would or do include face-to-face contact
with a client whose criminal history information includes a conviction
that bars employment under Texas Health and Safety Code §250.006
or a conviction the agency has determined is a contraindication to
employment. If an unlicensed volunteer's criminal history check includes
a conviction of an offense that is not listed in Texas Health and
Safety Code §250.006, the agency must document its review of
the conviction and its determination of whether the conviction is
a contraindication to employment.
(3) Before an unlicensed volunteer's first face-to-face
contact with a client, the agency must conduct a search of the NAR
and the EMR using the HHSC website to determine if an unlicensed volunteer
is listed in either registry as unemployable. The agency must not
use the services of an unlicensed volunteer who is listed as unemployable
in either registry.
(4) The agency must provide written information about
the EMR that complies with the requirements of 40 TAC §93.3(c)
to an unlicensed volunteer within five working days from the date
of the person's first face-to-face contact with a client.
(5) In addition to the initial verification of employability,
the agency must search the NAR and the EMR to determine if a volunteer
is designated in either registry as unemployable, as follows:
(A) for a volunteer with face-to-face contact with
a client for the first time before September 1, 2009, by August 31,
2011, and at least every twelve months thereafter; and
(B) for a volunteer with face-to-face contact with
a client for the first time on or after September 1, 2009, at least
every twelve months.
(6) The agency must immediately stop using the services
of an unlicensed volunteer for duties that would or do include face-to-face
contact with a client when the agency becomes aware that:
(A) the unlicensed volunteer is designated in the NAR
or the EMR as unemployable; or
(B) the unlicensed volunteer's criminal history check
reveals conviction of a crime that bars employment or that the agency
has determined is a contraindication to employment.
(c) Upon request by HHSC, an agency must provide documentation
to demonstrate compliance with subsections (a) and (b) of this section.
(d) An agency that contracts with another agency or
organization for an unlicensed person to provide home health services,
hospice services, or personal assistance services under arrangement
must also comply with the requirements in §558.289(c)-(d) of
this subchapter (relating to Independent Contractors and Arranged
Services).
|
| Source Note: The provisions of this §558.247 adopted to be effective September 1, 2010, 35 TexReg 7879; transferred effective May 1, 2019, as published in the April 12, 2019, issue of the Texas Register, 44 TexReg 1893; amended to be effective April 25, 2021, 46 TexReg 2427 |
