Texas Department of Aging and Disability Services
Employee Misconduct Registry Handbook
Revision: 14-1

§93.1  Purpose

(a)
This chapter implements THSC, Chapter 253, Employee Misconduct Registry, regarding investigating an allegation of abuse, neglect, or exploitation, and entering information in the employee misconduct registry (EMR) about a finding of reportable conduct by an unlicensed employee of a facility, of an agency, or of an individual employer.
(b)
DADS maintains the EMR and enters information in the EMR in accordance with §93.8 of this chapter (relating to Entering Information in the EMR).
(c)
The EMR lists persons who are not employable by a facility, agency, or individual employer.

§93.2  Definitions

The following words and terms in this chapter have the following meanings, unless the context clearly indicates otherwise:

(1)
Abuse — Is defined by the statute or rule that governs the investigation of alleged abuse of an individual using the CDS option or receiving facility or agency services.
(2)
Administrative law judge — A SOAH attorney who conducts administrative hearings.
(3)
Administrative hearing — A hearing held by SOAH to determine whether an employee of a facility, of an agency, or of an individual employer has committed reportable conduct.
(4)
Agency — In this chapter means:
(A)
a home and community support services agency licensed under THSC, Chapter 142, that provides services to an elderly or disabled adult;
(B)
a person exempt from licensing under THSC, §142.003(a)(19);
(C)
a facility for persons with an intellectual disability or related conditions licensed under THSC, Chapter 252;
(D)
a state supported living center;
(E)
a local authority designated under THSC, §533.035;
(F)
a community center as defined in THSC, §531.002;
(G)
a mental health facility operated by the Department of State Health Services;
(H)
the intermediate care facility for individuals with an intellectual disability component of the Rio Grande State Center; or
(I)
a contractor of an entity described in subparagraphs (D) - (H) of this paragraph.
(5)
CDS option — Consumer directed services option. A service delivery option, described in Chapter 41 of this title (relating to Consumer Directed Services Option), in which an individual or legally authorized representative (LAR) employs and retains service providers and directs the delivery of program services.
(6)
Child — A person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.
(7)
Commissioner — The commissioner of DADS.
(8)
DADS — The Department of Aging and Disability Services.
(9)
Employee — A person who:
(A)
works for an agency, a facility, or an individual employer;
(B)
provides personal care services, active treatment, or any other personal services to an individual using the CDS option or receiving facility or agency services; and
(C)
is not licensed to perform those services or is a nurse aide.
(10)
EMR — Employee Misconduct Registry. The registry described in THSC, Chapter 253, and available on the DADS Internet website.
(11)
Exploitation — Is defined by the statute or rule that governs the investigation of alleged exploitation of an individual using the CDS option or receiving facility or agency services.
(12)
Facility — In this chapter means:
(A)
a nursing facility licensed under THSC, Chapter 242;
(B)
an assisted living facility licensed under THSC, Chapter 247;
(C)
a home and community support services agency licensed under THSC, Chapter 142, that provides services to a child;
(D)
a home and community support services agency licensed under THSC, Chapter 142, as a hospice inpatient unit or hospice residential unit;
(E)
an adult day care facility licensed under Texas Human Resources Code, Chapter 103;
(F)
an adult foster care provider that contracts with DADS; or
(G)
a prescribed pediatric extended care center licensed under THSC, Chapter 248A.
(13)
FMSA — A financial management services agency. As defined in §41.103 of this title (relating to Definitions), an entity that contracts with DADS to provide financial management services to individuals who use the CDS option.
(14)
Individual employer — An employer, as defined in §41.103 of this title, which is an individual or LAR who participates in the CDS option and is responsible for hiring and retaining service providers to deliver program services.
(15)
IR — Informal review. An opportunity for an employee to dispute a finding of reportable conduct by providing testimony and supporting documentation to an impartial DADS staff person.
(16)
NAR — Nurse aide registry. The registry described in THSC, 250.001(1), and available on the DADS Internet website.
(17)
Neglect — Is defined by the statute or rule that governs the investigation of alleged neglect of an individual using the CDS option or receiving facility or agency services.
(18)
Reportable conduct — Reportable conduct, as defined in THSC, §253.001, which includes:
(A)
abuse or neglect that causes or may cause death or harm to an individual using the CDS option or receiving facility or agency services;
(B)
sexual abuse of an individual using the CDS option or receiving facility or agency services;
(C)
financial exploitation of an individual using the CDS option or receiving facility or agency services in the amount of $25 or more; and
(D)
emotional, verbal, or psychological abuse that causes harm to an individual using the CDS option or receiving facility or agency services.
(19)
SOAH — State Office of Administrative Hearings. A state agency responsible for conducting administrative hearings for other state agencies, including DADS.
(20)
THSC — Texas Health and Safety Code.

§93.3  Employment and Registry Information

(a)
Before a facility, agency, or individual employer hires an employee, the facility, the agency, the individual employer, or an FMSA on behalf of the individual employer must search the EMR and NAR to determine if the person applying for employment is listed as unemployable on either registry.
(b)
A facility, agency, or individual employer must not hire or continue to employ a person listed in the EMR or NAR as unemployable.
(c)
A facility, agency, or individual employer must, within five working days after hiring an employee, provide written information to the employee explaining:
(1)
that a person listed in the EMR is not employable by a facility, agency, or individual employer; and
(2)
that the EMR is governed by this chapter and THSC, Chapter 253.
(d)
A facility, agency, individual employer, or FMSA on behalf of an individual employer must search the EMR and NAR annually to determine if an employee is listed on either registry as unemployable.
(e)
A facility, agency, individual employer, or FMSA on behalf of an individual employer must maintain a copy of the results of the searches required by subsections (a) and (d) of this section in the books and records maintained by the entity that conducted the search.

§93.4  Investigations

(a)
DADS investigates allegations of abuse, neglect, and exploitation made against an employee of a facility.
(b)
The Department of Family and Protective Services (DFPS) investigates allegations of abuse, neglect, and exploitation made against an employee of an agency or of an individual employer.
(c)
If DADS determines that a substantiated allegation of abuse, neglect, or exploitation by an employee of a facility meets the definition of reportable conduct, DADS complies with §§93.5, 93.6, and 93.7 of this chapter (relating to DADS Investigates: Notice to Employee of Reportable Conduct, DADS Investigates: Informal Review, and DADS Investigates: Notice of Opportunity for Administrative Hearing).
(d)
Sections 93.5, 93.6, and 93.7 of this chapter apply only to an investigation conducted by DADS, as described in subsection (a) of this section.

§93.5  DADS Investigates: Notice to Employee of Reportable Conduct

(a)
After an investigation in which DADS finds that an employee of a facility has committed reportable conduct, DADS sends the employee a written notice that includes:
(1)
a brief summary of the finding of reportable conduct and facts on which the finding is based;
(2)
a statement that the employee may request an IR by DADS to dispute the finding;
(3)
a statement that a request for an IR must be made in writing no later than 10 calendar days after the date the employee receives the written notice; and
(4)
the address and telephone number for the local DADS regional office where an employee may request an IR.
(b)
An employee of a facility may dispute the finding by requesting an IR in writing no later than 10 calendar days after the date the employee received the written notice described in subsection (a) of this section.

§93.6  DADS Investigates: Informal Review

(a)
If an employee of a facility requests an IR in accordance with §93.5(b) of this chapter (relating to DADS Investigates: Notice to Employee of Reportable Conduct), DADS sets an IR date no later than 30 calendar days after the date the request is received by DADS.
(1)
DADS designates an impartial Regulatory Services Division staff person at the local DADS regional office to conduct the IR.
(2)
The employee may dispute the finding of reportable conduct by providing oral testimony in person or by telephone, and by providing supporting documentation to the designated staff person.
(3)
If the designated staff person does not uphold the finding of reportable conduct, DADS notifies the employee of the results of the IR and does not enter the employee's name or related information in the EMR.
(4)
If the designated staff person upholds the finding of reportable conduct, DADS notifies the employee in accordance with §93.7(a) of this chapter (relating to DADS Investigates: Notice of Opportunity for Administrative Hearing).
(b)
If an employee of a facility does not timely request an IR or fails to appear for a requested IR, DADS notifies the employee in accordance with §93.7(a) of this chapter, except the notice does not include a summary of the results of an IR.

§93.7  DADS Investigates: Notice of Opportunity for Administrative Hearing

(a)
Except as provided in §93.6(b) of this chapter (relating to DADS Investigates: Informal Review), written notice sent to an employee in accordance with §93.6(a)(4) or (b) includes:
(1)
a brief summary of the results of the IR;
(2)
a statement that the employee may request an administrative hearing on the finding of reportable conduct;
(3)
a statement that a request for hearing must be made in writing no later than 30 calendar days after the date the employee receives the written notice; and
(4)
the address and telephone number for the Health and Human Services Commission Hearings Division where the employee may request an administrative hearing.
(b)
If the employee of a facility does not request an administrative hearing, the employee's name and related information are entered in the EMR.
(c)
An employee of a facility may request an administrative hearing conducted in accordance with the Health and Human Services Commission's administrative hearing procedures in Title 1, Texas Administrative Code, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).
(d)
If an employee of a facility timely requests a hearing, the employee is granted an administrative hearing on the finding of reportable conduct before an administrative law judge at SOAH. THSC §253.004 requires a hearing to be completed no later than 120 days after the request for the hearing is received.
(e)
The administrative law judge issues a proposal for decision finding that the employee of a facility either did or did not commit reportable conduct.
(f)
The information described in §93.8(c) of this chapter (relating to Entering Information in the EMR) regarding an employee is entered in the EMR if, after reviewing the proposal for decision, the commissioner or the commissioner's designee issues a final order finding that the employee committed reportable conduct.

§93.8  Entering Information in the EMR

(a)
DADS enters the information described in subsection (c) of this section in the EMR:
(1)
when DADS investigates and all due process procedures are completed for a substantiated finding of reportable conduct;
(2)
as required by THSC, §253.0075, when DADS receives notice of a substantiated finding of reportable conduct from the Department of Family and Protective Services (DFPS);
(3)
as a finding of reportable conduct when DADS finds that a nurse aide working in a nursing facility has committed abuse, neglect, or misappropriation (as those terms are defined in §94.2 of this title (relating to Definitions)) and DADS lists the nurse aide's certification as revoked on the NAR; or
(4)
if a federal or another state governmental entity finds that an employee has committed an act that constitutes reportable conduct.
(b)
DADS does not offer an IR as described in §93.6 of this chapter (relating to DADS Investigates: Informal Review) or an administrative hearing as described in §93.7 of this chapter (relating to DADS Investigates: Notice of Opportunity for Administrative Hearing) to an employee regarding a finding of reportable conduct described in subsection (a)(2), (3), or (4) of this section before entering information related to the finding in the EMR.
(1)
For a finding under subsection (a)(3) of this section DADS provides due process before listing a nurse aide's certification as revoked in the NAR.
(2)
For a finding under subsection (a)(2) or (4) of this section DFPS, a federal agency, or an agency of another state provides the due process required by its laws, rules or regulations before sending a finding to DADS.
(c)
The following information is entered in the EMR in accordance with THSC, §253.007 (relating to Employee Misconduct Registry):
(1)
the employee's name;
(2)
the employee's address;
(3)
the employee's social security number;
(4)
the name of the facility or agency, or a notation that the employee was an employee of an individual employer;
(5)
the address of the facility or agency, or the city and state of the individual employer;
(6)
the date the reportable conduct was committed; and
(7)
a description of the reportable conduct committed.

§93.9  Removing Information from the EMR

An employee's name remains in the EMR unless:

(1)
DADS determines that the employee does not meet the requirements for listing in the EMR based on additional information gathered by DADS or notification received from the Department of Family and Protective Services or another referring entity; or
(2)
an entry of reportable conduct in the EMR was based on an entry in the NAR and the entry in the NAR is subsequently removed.