26 Tex. Admin. Code § 506.36 - Criminal History and Nurse Aide Registry Checks of Employees and Applicants for Employment
(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.
Notes
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