Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION
Chapter 414.
PROTECTION OF CONSUMERS AND CONSUMER RIGHTS
Subchapter K. CRIMINAL HISTORY CLEARANCES
25 TAC §§414.501 - 414.509
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeals of §§414.501 - 414.509 of Chapter 414,
Subchapter K, concerning criminal history clearances, without changes to the
proposal as published in the October 5, 2001, issue of the
Texas Register
(26 TexReg 7796). New §§414.501 - 414.509
of Chapter 414, Subchapter K, concerning criminal history and registry clearances,
which replace the repealed sections, are contemporaneously adopted in this
issue of the
Texas Register
.
The repeals allow for the adoption of new sections governing the same matters.
The contemporaneous repeal and adoption of these subchapters would fulfill
the requirements of the Texas Government Code, §2001.039, concerning
the periodic review of agency rules.
No comment on the proposal was received.
These sections are adopted for repeal under the Texas Health
and Safety Code, §532.015, which provides the Texas Mental Health and
Mental Retardation Board (board) with broad rulemaking authority; §250.002(d),
which authorizes a regulatory state agency to adopt rules relating to the
processing of criminal history information; §533.007(b), which authorizes
the board to adopt rules relating to the use of criminal history information;
and the Texas Government Code, §411.115, which authorizes TDMHMR to obtain
criminal history information from the Texas Department of Public Safety.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2002.
TRD-200200252
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: February 6, 2002
Proposal publication date: October 5, 2001
For further information, please call: (512) 206-5216
25 TAC §§414.501 - 414.509
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts new §§414.501 - 414.509 of Chapter 414, Subchapter
K, concerning criminal history and registry clearances. Sections 414.502 -
414.504, 414.507, 414.509 are adopted with changes to the proposed text as
published in the October 5, 2001, issue of the
Texas
Register
(26 TexReg 7796-7800). Sections 414.501, 414.505, 414.506,
and 414.508 are adopted without changes. The repeals of existing §§414.501
- 414.509 of Chapter 414, Subchapter K, concerning criminal history clearances,
which the new sections replace, are contemporaneously adopted in this issue
of the
Texas Register
.
The new subchapter describes the process by which criminal history and
registry clearances are conducted for applicants for employment and volunteer
status with facilities, local authorities, community centers, and their respective
contract providers of residential services. The subchapter also requires facilities,
local authorities, community centers, and contract providers to have an effective
self-reporting procedure for employees and volunteers.
The new subchapter applies to local authorities in the same manner as it
applies to TDMHMR facilities and community MHMR centers. It implements Senate
Bill 1245 and House Bill 1418 (77th Legislature), each of which amends the
Texas Health and Safety Code, §250.006, to include as a bar to employment
a conviction under the laws of another state, federal law, or the Uniform
Code of Military Justice for an offense containing elements that are substantially
similar to the elements of an offense otherwise listed in §250.006. House
Bill 1418 additionally includes as a bar to employment a felony conviction
for theft under the Penal Code, Chapter 31, which occurred within the previous
five years. Because both bills allow a facility, local authority, or community
center to obtain criminal history record information directly from the Texas
Department of Public Safety (TDPS), the subchapter eliminates the requirement
(as well as the option) to obtain criminal history record information through
the IS Coordinator, Criminal History Records Information (CHRI), at TDMHMR
Central Office. Additionally, the new subchapter bars from employment or volunteer
status applicants who are listed as revoked in the Nurse Aide Registry and
who are listed as unemployable in the Employee Misconduct Registry.
The contemporaneous adoption and repeal of these subchapters fulfill the
requirements of the Texas Government Code, §2001.039, concerning the
periodic review of agency rules.
Minor grammatical changes have been made throughout the subchapter for
clarification. Reference to the city of Austin in §414.502(a)(1), §414.503(5),
and §414.509(a)(2) as it relates to TDMHMR Central Office has been deleted.
Psychiatry has been included as a professional degree program in the definition
of "professional clinical intern." Language has been added to the definition
of "volunteer" to be consistent with the definition of "volunteer" that is
in the rules governing community relations (25 TAC Chapter 417, Subchapter
G) and to clarify that "volunteer" does not include a professional clinical
intern. Definitions for "visiting group" and "volunteer services council"
have been added because the two terms are used in the revised definition of
"volunteer." Language has been added to §414.504(c) clarifying that the
written agreement with a university or college must state that background
checks of professional clinical interns must ensure compliance with §414.504(d),
which describes who may not serve as an employee, volunteer, or professional
clinical intern, and that the written agreement must also include a description
of how background checks will be conducted and funded. Language has been added
to §414.504(d) to include professional clinical interns.
A provision has been added as a new subsection (a) in §414.507 requiring
each facility, local authority, community center, and provider to initiate
a registry check of all current employees and volunteers upon the effective
date of the subchapter. The provision requires immediate discharge of an employee/volunteer
who is listed as revoked in the Nurse Aide Registry or listed as unemployable
in the Employee Misconduct Registry. The self-reporting requirement in §414.507
has been expanded to include reporting of a subsequent listing in the Nurse
Aide Registry or Employee Misconduct Registry. Language has been deleted in
proposed §414.507(c)(2)(B) that allowed the employer to consider mitigating
circumstances in cases in which the employer discovered that, after employment
or assignment of volunteer status, an employee/volunteer's criminal history
record information revealed a conviction for an offense determined to be a
contraindication to employment or volunteer status. Language has been added
allowing the employer to consider any contention by the employee/volunteer
concerning errors of fact or identity in the criminal history record information;
to permit the employee/volunteer to rectify the accuracy of the information;
and to remove the employee/volunteer from direct contact with consumers while
the employee/volunteer attempts to rectify the accuracy of the information.
New language also states that if the employee/volunteer fails to rectify the
accuracy of the information, as provided by Texas Health and Safety Code, §250.005(b),
then the employer must immediately discharge the employee/volunteer. Language
has been added to §414.507(d) that requires immediate discharge of an
employee/volunteer who is listed as revoked in the Nurse Aide Registry or
listed as unemployable in the Employee Misconduct Registry.
The fiscal note for the proposed rules stated that there were no foreseeable
significant fiscal implications because the proposed new rules were not substantially
different from the rules proposed for repeal. However, a change in FBI charges
and procedures has fiscal implications for facilities, community centers,
local authorities, and providers related to the requirement to obtain criminal
history information from the FBI for applicants who have lived outside the
State of Texas at any time during the two years preceding the application.
The cost of each FBI fingerprint check has increased by $15, from $24 to $39.
Written comment on the proposal was received from Spindletop MHMR Services,
Beaumont; Texana MHMR Center, Rosenberg; Lubbock Regional MHMR, Lubbock; Parent
Association for the Retarded of Texas, Austin; and the parent of a state school
resident in Garland.
Two commenters acknowledged that the proposed rules prohibit a facility,
local authority, or community center from hiring an applicant who is listed
as revoked in the Nurse Aide Registry or listed as unemployable in the Employee
Misconduct Registry. The two commenters asked if facilities, local authorities,
and community centers were supposed to check the registries to determine whether
any current employee were listed and, if a current employee were listed, whether
the employee should be discharged. One of the commenters asked if there was
latitude for discretion. The two commenters expressed concern that since the
definition of "reportable conduct" as it applies to the Employee Misconduct
Registry has not been resolved, their organizations may be forced to discharge
an employee for a minor incident. TDMHMR responds that language has been added
requiring facilities, local authorities, community centers, and providers
to initiate registry checks for all current employees and volunteers upon
the effective date of the subchapter, and, as required by law (Texas Health
and Safety Code, §250.003(c)), to immediately discharge any employee/volunteer
who is listed in a registry as revoked or unemployable. Regarding the unresolved
definition of "reportable conduct," TDMHMR notes that the Texas Health and
Safety Code, §253.001(5), defines "reportable conduct" to include abuse
or neglect that causes or may cause death or harm to a resident or consumer
of a facility; sexual abuse of a resident or consumer of a facility; financial
exploitation of a resident or consumer of a facility in an amount of $25 or
more; and emotional, verbal, or psychological abuse that causes harm to a
resident or consumer of a facility. ("Facility" is defined to mean a facility
licensed by DHS or an adult foster care provider that contracts with DHS.)
Additionally, the Texas Department of Protective and Regulatory Services (PRS)
has recently proposed rules governing the Employee Misconduct Registry (40
TAC Chapter 711, Subchapter O), in which harm that is related to abuse or
neglect is clarified as
serious physical injury
,
and harm that is related to emotional or verbal abuse is clarified as
One commenter questioned the proposal's fiscal note which stated there
was no foreseeable significant implications relating to cost or revenue of
the state or local governments. The commenter expressed concern that the charge
increase for obtaining criminal history information from the Texas Department
of Public Safety (DPS) from $1 to $3.15 is considered significant for the
commenter's organization. TDMHMR responds that the charge for obtaining criminal
history information from the Texas Department of Public Safety (DPS) did not
increase; it remains at $1 per name check.
A commenter asked why the proposed rules did not recognize "that people
do become rehabilitated at some point" and whether there was any possibility
that persons whose names are listed in the registry for certain types of misconduct
might be removed after 10 or 15 years. TDMHMR responds that it is not authorized
to adopt rules governing the Employee Misconduct Registry or the Nurse Aide
Registry. The registries are maintained by the Texas Department of Human Services
(DHS), pursuant to the Texas Health and Safety Code, Chapters 250 and 253.
Only DHS and PRS may adopt rules governing the submission of names to the
registries.
Regarding the requirement for local authorities to require their contract
providers of residential services to comply with the subchapter in §414.502(b),
one commenter stated that the provision would require a change in the MRLA
Provider Principles because MRLA providers contract with TDMHMR Central Office
and are not currently held to the subchapter's standards. The commenter also
stated that such a requirement "will be an issue for both those providers
and for Survey/Certification at the local authority level." TDMHMR responds
that there is no connection between the MRLA Provider Principles and this
subchapter. TDMHMR notes that MRLA providers who contract with TDMHMR Central
Office must conduct criminal history and registry checks of their employees,
applicants, and contractors pursuant to Chapter 409, Subchapter L of this
title (concerning Mental Retardation Local Authority (MRLA) Program), P41.
of the MRLA Program Principles for Program Providers.
Regarding criminal history and registry clearances for interns in §414.504(c)(2),
one commenter asked if there was a definition for intern and recommended that
a definition include only those who serve more than 50 hours at the facility,
local authority, or community center. The commenter stated that her community
center provides experimental work sites for 80 to 100 students per year, with
some students spending less than eight hours on site. The commenter expressed
concern that the charge for criminal history information ($1 for a DPS check
and approximately $40 for a FBI check) for every intern, regardless of the
amount of time served on-site, could cause a center reduce the number of interns
permitted to serve, which would severely limit the exposure of students to
the behavioral health field. TDMHMR responds that a definition for "professional
clinical intern" is contained in §414.503(8), and does not include a
minimum number of hours of service. TDMHMR notes that language has been added
to §414.504(c) clarifying that the written agreement with a university
or college must state that background checks of professional clinical interns
must ensure compliance with §414.504(d), which describes who may not
serve as an employee, volunteer, or professional clinical intern, and that
the written agreement must also include a description of how background checks
will be conducted and funded. The rule does not preclude a facility, local
authority, or community center from requiring the university or college to
pay for the costs of conducting background checks.
Regarding obtaining criminal history information from the FBI for applicants
who have lived outside the State of Texas any time during the past two years
in §414.505(c), one commenter expressed concern that the approximately
$40 charge could prove costly over time, particularly for volunteers who have
a high rate of turnover. TDMHMR responds that state statute clearly intends
for TDMHMR, local authorities, community centers, and contract providers of
residential services to take reasonable steps to ensure the safety of individuals
with mental illness and mental retardation in their care by conducting criminal
history checks of applicants, employees, and volunteers. It is unfortunate
that the charge for obtaining criminal history information through the FBI
has increased so dramatically, but FBI checks have proven to be effective
at revealing convictions that are absolute bars to employment/volunteer status.
TDMHMR notes that if FBI checks for volunteers become too costly, the facility,
local authority, community center, or provider has the option of limiting
volunteer applicants to those individuals who have lived in the State of Texas
during the past two years.
Regarding reassignment of an employee until resolution of matters relating
to an arrest warrant or wanted person's notice in §414.507(c)(1), one
commenter recommended establishing a reasonable timeframe for resolution.
The commenter stated that a lengthy reassignment period could create a hardship
for the employer. TDMHMR responds that reassignment of an employee until resolution
of matters relating to an arrest warrant or wanted person's notice is permissive.
Depending upon the matters related to the warrant or notice, the employer
may choose to not reassign the employee pending resolution. TDMHMR notes that §414.507(c)
requires each facility, local authority, community center, and provider to
develop written policies and procedures consistent with this subchapter describing
how it will respond to information obtained through self-reporting and subsequent
criminal history and registry checks. These policies and procedures could
establish a reasonable timeframe for reassignment or for resolution. TDMHMR
also notes that the Texas Health and Safety Code, §533.007(b), prohibits
adverse personnel action (e.g., discharge, demotion) based on arrest warrant
or wanted persons information.
Regarding reassignment of an employee while the employee attempts to rectify
the accuracy of criminal history information in §414.507(c)(2)(A), one
commenter recommended establishing a reasonable timeframe for reassignment.
The commenter stated that a lengthy reassignment period could create a hardship
for the employer. TDMHMR responds that reassignment of an employee while the
employee attempts to rectify the accuracy of criminal history information
that indicates a conviction for an offense that is a bar to employment is
permissive. The facility, local authority, community center, or provider may
choose to immediately discharge the employee. TDMHMR notes that §414.507(c)
requires each facility, local authority, community center, and provider to
develop written policies and procedures consistent with this subchapter describing
how it will respond to information obtained through self-reporting and subsequent
criminal history and registry checks. These policies and procedures could
establish a reasonable timeframe for reassignment or for rectifying inaccurate
criminal history information.
Two commenters objected to use of the term "consumer" instead of "individual,"
which is used in the repealed rules. The commenter stated "there is no reason
to change from 'individual'" and that "there is nothing wrong with using the
term 'individual.'" TDMHMR responds that "individual" is a generic term used
throughout this subchapter to describe several different kinds of people.
To reduce the potential for confusion, "consumer" is defined to mean only
those individuals receiving services from a facility, local authority, community
center, or provider. TDMHMR notes that the definition of "volunteer" uses
the term "individual," and individual is used to describe an elderly or disabled
person in §414.504(g)(6).
Regarding the definition of "provider" in §414.503(7), two commenters
asked why checks are conducted only for staff who deliver services to "individuals
with mental illness or mental retardation who have been furloughed or discharged
from a facility or community center as described in the Texas Government Code, §411.115(b)."
The commenter asked if the rules applied to group homes and day programs and
stated that individuals served in group homes and day programs need to be
protected as well. TDMHMR responds that the language in the definition of
provider comes from the Texas Government Code, §411.115(b)(1)(C), which
entitles TDMHMR, a local authority, or a community center to obtain criminal
history information for "an applicant for employment with or an employee of
a business or person that contracts with the Texas Department of Mental Health
and Mental Retardation, a local mental health or mental retardation authority,
or a community center
to provide residential services
to patients with mental illness or clients with mental retardation who were
furloughed or discharged from a Texas Department of Mental Health and Mental
Retardation facility or community center
." Regarding group home and
day programs, TDMHMR responds that it agrees with the commenter that persons
served in group homes and day programs need to be protected; however, state
statute does not authorize TDMHMR, local authorities, or community centers
to obtain criminal history information for applicants and employees of contract
providers that deliver non-residential services, such as day programs. Group
homes are considered residential services; therefore, a group home provider
that contracts with TDMHMR, a local authority, or a community center would
be required to comply with this subchapter. Since day programs are not residential
services this subchapter does not apply to day program providers that contract
with TDMHMR, a local authority, or a community center. TDMHMR notes that the
subchapter does not preclude TDMHMR, a local authority, or community center
from requiring its contract providers of day programs to conduct criminal
history and registry checks of the contractor's applicants and employees.
Regarding professional clinical interns in §414.504(c), two commenters
asked why interns were exempted from criminal history and registry clearances.
The commenter requested that the rule require interns to go through the same
clearances as other applicants. TDMHMR responds that the subchapter does not
exclude interns from criminal history checks. TDMHMR notes that language has
been added requiring background checks of interns to comply with §414.504(d),
which describes who may not serve as an employee, volunteer, or professional
clinical intern.
Regarding the criminal convictions that constitute an absolute bar to employment
in §414.504(g), two commenters requested that "assault" and "rape" be
added. TDMHMR responds that the types of criminal offenses for which a conviction
would bar employment is contained in state statute (Texas Health and Safety
Code, §250.006). TDMHMR is not authorized to add offenses to the statutory
list; however, state statute allows TDMHMR, local authorities, community centers,
and providers to identify other offenses for which a conviction would be a
contraindication to employment or volunteer status at that entity. TDMHMR
notes that
aggravated
assault is a bar to
employment as described in §414.504(g)(5), and rape, which is sexual
assault, is a bar to employment as described in §414.504(g)(4).
Regarding criminal history checks through the FBI in §414.505(c),
two commenters asked how the facility, local authority, or community center
finds out if the applicant has lived outside the State of Texas within the
past two years. TDMHMR responds that the employer finds out by asking the
applicant, conducting a thorough review of the application, and calling references.
Regarding §414.507(c)(1) in which an employer may reassign an employee/volunteer
to a non-direct care area, two commenters recommended that the rule
Regarding proposed §414.507(c)(2)(B) in which the employer may consider
mitigating circumstances, two commenters asked what could be considered "mitigating
circumstances" and recommended deleting the subparagraph. TDMHMR responds
language has been deleted that allowed the employer to consider mitigating
circumstances in cases in which the employer discovered that, after employment
or assignment of volunteer status, an employee/volunteer's criminal history
record information revealed a conviction for an offense determined to be a
contraindication to employment or volunteer status. Language has been added
allowing the employer to consider any contention by the employee/volunteer
concerning errors of fact or identity in the criminal history record information;
to permit the employee/volunteer to rectify the accuracy of the information;
and to remove the employee/volunteer from direct contact with consumers while
the employee/volunteer attempts to rectify the accuracy of the information.
New language also states that if the employee/volunteer fails to rectify the
accuracy of the information, as provided by Texas Health and Safety Code, §250.005(b),
then the employer must immediately discharge the employee/volunteer. TDMHMR
notes that facilities, local authorities, community centers, and providers
may consider mitigating circumstances in determining whether or not a conviction
(for an offense not listed as a bar to employment) is a contraindication to
employment or volunteer status.
Two commenters expressed concern that the proposed rules did not address
how employees are reported to the Employee Misconduct Registry and the Nurse
Aide Registry. The commenter suggested adding a section and asked what the
guidelines were for reporting to the registries. TDMHMR responds that it is
not authorized to adopt rules governing the Employee Misconduct Registry or
the Nurse Aide Registry. The registries are maintained by the Texas Department
of Human Services (DHS), pursuant to the Texas Health and Safety Code, Chapters
250 and 253. Only DHS and the Texas Department of Protective and Regulatory
Services may adopt rules governing the submission of names to the registries.
One commenter asked if a state school employee who has committed abuse
would be listed in the Employee Misconduct Registry. TDMHMR responds that,
pursuant to the Texas Health and Safety Code, Chapter 253, only employees
of a "facility" who have committed "reportable conduct" are listed in the
Employee Misconduct Registry. "Facility" means a facility licensed by DHS
or an adult foster care provider that contracts with DHS. "Reportable conduct"
includes abuse or neglect that causes or may cause death or harm to a resident
or consumer of a facility; sexual abuse of a resident or consumer of a facility;
financial exploitation of a resident or consumer of a facility in an amount
of $25 or more; and emotional, verbal, or psychological abuse that causes
harm to a resident or consumer of a facility. Additionally, DHS rules (40
TAC, §93.4(b)) state that "Only acts of misconduct that occur on or after
September 1, 1999, will be recorded in the registry."
These sections are adopted under the Texas Health and Safety
Code, §532.015, which provides the Texas Mental Health and Mental Retardation
Board (board) with broad rulemaking authority; §250.002(d), which authorizes
a regulatory state agency to adopt rules relating to the processing of criminal
history information; §533.007(b), which authorizes the board to adopt
rules relating to the use of criminal history information; and the Texas Government
Code, §411.115, which authorizes TDMHMR to obtain criminal history information
from the Texas Department of Public Safety.
§414.502.Application.
(a)
This subchapter applies to:
(1)
facilities (which include TDMHMR Central Office);
(2)
local authorities; and
(3)
community centers.
(b)
Facilities, local authorities, and community centers must
require their contract providers of residential services, including residences
certified by the intermediate care facilities for the mentally retarded or
persons with a related condition (ICF/MR or ICF/MR/RC) program that are owned
and operated by a local authority or community center, to comply with the
applicable provisions of this subchapter.
(c)
This subchapter does not apply to residences certified
by the ICF/MR or ICF/MR/RC program that are owned by a local authority or
community center but operated under contract by a private provider, or that
are privately owned and operated. Criminal history and registry clearances
are conducted for such residences in accordance with rules of the Texas Department
of Human Services (TDHS) in 40 TAC §§76.101- 76.106.
§414.503.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Applicant--At the employer's discretion, either a person
who is one of a select number of final candidates for a position as an employee
or volunteer or a person to whom the employer intends to offer a position
as an employee or volunteer. The term "applicant" does not include a member
of the Texas MHMR Board, a member of a local authority's or community center's
board of trustees, or a member of a facility's, local authority's, or community
center's advisory committee that is not a public responsibility committee
(PRC).
(2)
Community center--A community mental health and mental
retardation center established under the Texas Health and Safety Code, Title
7, Chapter 534, Subchapter A.
(3)
Consumer--An individual receiving services from a facility,
local authority, community center, or contract provider of residential services.
(4)
Conviction--The adjudication of guilt, plea of guilty or
nolo contendere, or the assessment of probation or community supervision for
a violation of the Penal Code.
(5)
Facility--Any state hospital, state school, or state center
operated by TDMHMR, or TDMHMR Central Office.
(6)
Local authority--An entity designated by the TDMHMR commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(7)
Provider--Any entity or person who contracts with a facility,
local authority, or community center to deliver residential services to individuals
with mental illness or mental retardation who have been furloughed or discharged
from a facility or community center as described in the Texas Government Code, §411.115(b).
This does not include private ICF/MR or ICF/MR/RC providers.
(8)
Professional clinical intern--A person who is enrolled
in a formal clinical rotation at a university/college in a professional training
program accredited by the appropriate licensing authority or board of examiners,
or is engaged in a recognized graduate level, clinical professional degree
program. Professional degree programs include, but are not limited to, clinical
psychology, dentistry, medicine, nursing, occupational therapy, pharmacy,
physical therapy, psychiatry, and social work.
(9)
Registry--
(A)
The Nurse Aide Registry maintained by the Texas Department
of Human Services in accordance with §94.11 of Title 40 (relating to
Registry, Findings, Inquiries); and
(B)
the Employee Misconduct Registry maintained by the Texas
Department of Human Services in accordance with the Texas Health and Safety
Code, Chapter 253.
(10)
Visiting group--A group of varying individuals associated
with an organization (e.g., civic, fraternal, corporate, religious, social,
service, or education), which is not affiliated with a facility, local authority,
community center, or provider, that visits a facility, local authority, community
center, or provider (e.g., tours) or participates in a special event and has
constant and adequate staff supervision.
(11)
Volunteer--An individual who is not part of a visiting
group and who provides time or services to consumers, a facility, local authority,
community center, volunteer services council, or provider without compensation
from the facility, local authority, community center, volunteer services council,
or provider other than reimbursement for actual expenses. The term does not
include a professional clinical intern.
(12)
Volunteer services council--A 501(c)(3) organization that
is formed for the purpose of generating resources on behalf of a facility,
local authority, or community center.
§414.504.Pre-employment and Pre-assignment Clearance.
(a)
Each facility, local authority, community center, and provider
must conduct:
(1)
a pre-employment criminal history and registry clearance
of all applicants (as defined) for employment; and
(2)
a pre-assignment criminal history and registry clearance
of all applicants for volunteer status.
(b)
A provider that is required to conduct criminal history
and registry clearances in accordance with the Texas Health and Safety Code,
Chapter 250, must provide evidence of compliance with that law to the facility,
local authority, or community center with which it contracts.
(c)
For professional clinical interns, a written agreement
must exist between the facility, local authority, or community center and
the university/college. The written agreement must include:
(1)
a statement that responsibility for the care of consumers
is retained by the facility, local authority, or community center;
(2)
a statement that background checks of professional clinical
interns must ensure compliance with subsection (d) of this section; and
(3)
a description of how background checks of professional
clinical interns will be conducted and funded.
(d)
The following individuals may not be employed by, assigned
volunteer status at, or serve as a professional clinical intern at, a facility,
local authority, community center, or provider:
(1)
an individual who has been convicted of any of the criminal
offenses listed in subsection (g) of this section;
(2)
an individual who has been convicted of a criminal offense
that the facility, local authority, community center, or provider has determined
to be a contraindication to employment or volunteer status at that entity;
(3)
an individual who is listed as revoked in the Nurse Aide
Registry; or
(4)
an individual who is listed as unemployable in the Employee
Misconduct Registry.
(e)
The facility, local authority, community center, or provider
must inform applicants in writing at the time that application is made of
the following:
(1)
that a pre-employment/pre-assignment criminal history and
registry clearance will be conducted;
(2)
the types of criminal offenses for which a conviction would
bar employment or volunteer status as required by law;
(3)
that conviction of other types of criminal offenses may
be considered a contraindication to employment or volunteer status at that
entity; and
(4)
that being listed as revoked in the Nurse Aide Registry
or being listed as unemployable in the Employee Misconduct Registry would
bar employment or volunteer status.
(f)
An applicant who is not listed as revoked in the Nurse
Aide Registry and who is not listed as unemployable in the Employee Misconduct
Registry may be employed on a temporary or interim basis pending a criminal
history clearance if an emergency exists in which there is a risk to the health
and safety of consumers as a result of unfilled positions or in which the
operations of the organization are severely impaired as determined by the
chief executive officer of the facility, local authority, community center,
or provider.
(1)
The applicant must furnish the employer with an affidavit
stating that the applicant has not been convicted of any of the criminal offenses
listed in subsection (g) of this section or any criminal offense that the
employer has determined is a contraindication to employment. The affidavit
will be kept in the applicant's file. A sample affidavit may be obtained by
contacting Human Resource Services, TDMHMR, P.O. Box 12668, Austin, Texas
78711-2668.
(2)
Within 72 hours of the time the person is employed on a
temporary or interim basis, the facility, local authority, community center,
or provider must initiate a criminal history clearance of that person as described
in §414.505 of this title (relating to Obtaining or Requesting Criminal
History Record Information and Checking Registry).
(3)
If the criminal history record information reveals a conviction
for any of the criminal offenses listed in subsection (g) of this section
or for any criminal offense that the employer has determined is a contraindication
to employment, then the facility, local authority, community center, or provider
must immediately discharge the person as unemployable.
(4)
An applicant may not receive volunteer assignment on a
temporary or interim basis pending a criminal history clearance.
(g)
Consistent with the Texas Health and Safety Code, §250.006,
convictions of criminal offenses which constitute an absolute bar to employment
are:
(1)
criminal homicide (Penal Code, Chapter 19);
(2)
kidnapping and unlawful restraint (Penal Code, Chapter
20);
(3)
indecency with a child (Penal Code, §21.11);
(4)
sexual assault (Penal Code, §22.011);
(5)
aggravated assault (Penal Code, §22.02);
(6)
injury to a child, elderly individual, or disabled individual
(Penal Code, §22.04);
(7)
abandoning or endangering a child (Penal Code, §22.041);
(8)
aiding suicide (Penal Code, §22.08);
(9)
agreement to abduct from custody (Penal Code, §25.031);
(10)
sale or purchase of a child (Penal Code, §25.08);
(11)
arson (Penal Code, §28.02);
(12)
robbery (Penal Code, §29.02);
(13)
aggravated robbery (Penal Code, §29.03);
(14)
a conviction under the laws of another state, federal
law, or the Uniform Code of Military Justice for an offense containing elements
that are substantially similar to the elements of an offense listed under
paragraphs (1)-(13) of this subsection; and
(15)
a felony conviction for theft (Penal Code, Chapter 31)
which occurred within the previous five years.
§414.507.Self-Reporting and Subsequent Criminal History and Registry Checks.
(a)
Upon the effective date of this subchapter, each facility,
local authority, community center, and provider must initiate a registry check
of all current employees and volunteers. If an employee/volunteer is listed
as revoked in the Nurse Aide Registry or listed as unemployable in the Employee
Misconduct Registry, then the employer must immediately discharge the employee
or volunteer.
(b)
Following employment with or assignment of volunteer status
at a facility, local authority, community center, or provider, all employees
and volunteers must report to a person designated by that facility, local
authority, community center, or provider:
(1)
any subsequent convictions or offenses for which they are
charged; and
(2)
a subsequent listing as revoked in the Nurse Aide Registry
or listing as unemployable in the Employee Misconduct Registry.
(c)
A facility, local authority, community center, or provider
may conduct subsequent criminal history and registry checks on any employee
or volunteer at any time it deems appropriate.
(d)
Each facility, local authority, community center, and provider
must develop written policies and procedures consistent with this subchapter
describing how it will respond to information obtained through self-reporting
and subsequent criminal history and registry checks.
(1)
Pursuant to the Texas Health and Safety Code, §533.007(b),
adverse personnel action may not be taken if the information received pertains
to arrest warrants or wanted persons' notices. However, the employer may reassign
the employee/volunteer to a non-direct care area until resolution of the matters
relating to the arrest warrant or wanted persons' notice.
(2)
If the information reflects a conviction for an offense
listed in §414.504(g) of this title (relating to Pre-employment and Pre-assignment
Clearance), then consideration may be given to any contention by the employee/volunteer
concerning errors of fact or identity in the criminal history record information.
While the employee/volunteer is attempting to rectify the accuracy of the
information, the employer must remove the employee/volunteer from direct contact
with consumers. If the employee or volunteer fails to rectify the accuracy
of the information, as provided by Texas Health and Safety Code, §250.005(b),
then the employer must immediately discharge the employee or volunteer.
(3)
If the information reflects a conviction for an offense
determined to be a contraindication to employment or volunteer status, then
consideration may be given to any contention by the employee/volunteer concerning
errors of fact or identity in the criminal history record information. While
the employee/ volunteer is attempting to rectify the accuracy of the information,
the employer may remove the employee/volunteer from direct contact with consumers.
If the employee or volunteer fails to rectify the accuracy of the information,
as provided by Texas Health and Safety Code, §250.005(b), then the employer
must immediately discharge the employee or volunteer.
(4)
If the information indicates the employee/volunteer is
listed as revoked in the Nurse Aide Registry or listed as unemployable in
the Employee Misconduct Registry, then the employer must immediately discharge
the employee or volunteer.
§414.509.Distribution.
(a)
This subchapter will be distributed to:
(1)
members of the Texas MHMR Board;
(2)
executive, management, and program staff at TDMHMR Central
Office;
(3)
chief executive officers of all facilities, local authorities,
and community centers; and
(4)
advocacy organizations.
(b)
A copy of this subchapter will be made available upon request
to:
(1)
any person who applies for employment or volunteer status
with TDMHMR, a local authority, community center, or provider;
(2)
any employee or volunteer of TDMHMR, a local authority,
community center, or provider;
(3)
the counsel of record of an applicant, employee, or volunteer;
and
(4)
any interested person.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 17, 2002.
TRD-200200251
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: February 6, 2002
Proposal publication date: October 5, 2001
For further information, please call: (512) 206-5216
Subchapter C. USE AND MAINTENANCE OF TDMHMR DRUG FORMULARY
Subchapter K. CRIMINAL HISTORY AND REGISTRY CLEARANCES
Chapter 415.
PROVIDER CLINICAL RESPONSIBILITIES