Texas Department of Aging and Disability Services
Employee Misconduct Registry Handbook
Revision: 10-1

§93.1  Purpose

(a)
This chapter implements Texas Health and Safety Code, Chapter 253, Employee Misconduct Registry, to track findings of reportable conduct by an unlicensed employee of a facility or agency.
(b)
The Department of Aging and Disability Services (DADS) maintains the employee misconduct registry (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 in a facility or agency.

§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 a person 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 or agency has committed reportable conduct.
(4)
Agency — In this chapter means:
(A)
a home and community support services agency licensed under Texas Health and Safety Code, Chapter 142, that provides services to an elderly or disabled adult;
(B)
a person exempt from licensing under Texas Health and Safety Code, 142.003(a)(19);
(C)
a facility for persons with mental retardation or related conditions licensed under Texas Health and Safety Code, Chapter 252;
(D)
a state supported living center;
(E)
a local mental retardation or mental health authority designated under Texas Health and Safety Code, 533.035;
(F)
a community mental health and mental retardation center as defined in Texas Health and Safety Code, 531.002;
(G)
a mental health facility operated by the Department of State Health Services;
(H)
the intermediate care facility for persons with mental retardation component of the Rio Grande State Center; or
(I)
a contractor of an entity described in subparagraphs (D)-(H) of this paragraph.
(5)
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.
(6)
Commissioner — The commissioner of DADS.
(7)
DADS — The Department of Aging and Disability Services.
(8)
Employee — A person who:
(A)
works for an agency or a facility;
(B)
provides personal care services, active treatment, or any other personal services to a person receiving facility or agency services; and
(C)
is not licensed to perform those services or is a nurse aide.
(9)
EMR — Employee Misconduct Registry. The registry described in Texas Health and Safety Code, Chapter 253, and available on the DADS Internet website.
(10)
Exploitation — Is defined by the statute or rule that governs the investigation of alleged exploitation of a person receiving facility or agency services.
(11)
Facility — In this chapter means:
(A)
a nursing facility licensed under Texas Health and Safety Code, Chapter 242;
(B)
an assisted living facility licensed under Texas Health and Safety Code, Chapter 247;
(C)
a home and community support services agency licensed under Texas Health and Safety Code, Chapter 142, that provides services to a child;
(D)
a home and community support services agency licensed under Texas Health and Safety Code, Chapter 142, as a hospice inpatient unit of hospice residential unit;
(E)
an adult day care facility licensed under Texas Human Resources Code, Chapter 103; or
(F)
an adult foster care provider that contracts with DADS.
(12)
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.
(13)
NAR — Nurse Aide Registry. The registry described in Texas Health and Safety Code, 250.001(1), and available on the DADS Internet website.
(14)
Neglect — Is defined by the statute or rule that governs the investigation of alleged neglect of a person receiving facility or agency services.
(15)
Reportable conduct — Is defined by the statute or rule that governs the definition of reportable conduct for the state agency responsible for the investigation.
(16)
SOAH — State Office of Administrative Hearings. A state agency responsible for conducting administrative hearings for other state agencies, including DADS.

§93.3  Employment and Registry Information

(a)
Before a facility or agency hires an employee, the facility or agency must search the EMR and NAR to determine if the person applying for employment is listed as unemployable on either registry.
(b)
A facility or agency must not hire or continue to employ a person listed in the EMR or NAR as unemployable.
(c)
A facility or agency must provide information about the EMR to an employee within five working days after hiring the employee. The information must:
(1)
be in writing;
(2)
state that a person listed in the EMR is not employable by a facility or agency;
(3)
include a reference to this chapter and Chapter 253, Texas Health and Safety Code, Employee Misconduct Registry; and
(d)
A facility or agency must search the EMR and NAR annually to determine if an employee is listed on either registry as unemployable.
(e)
A facility or agency must maintain a copy of the results of the searches required by subsections (a) and (d) of this section in the person's personnel file.

§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 investigates allegations of abuse, neglect, and exploitation made against an employee of an agency.
(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 is responsible for the provision of due process described in 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 determines 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 findings and facts on which the findings are based;
(2)
a statement that the employee may request an IR by DADS to dispute the findings;
(3)
a statement that a request for an IR must be made 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 these findings by requesting an IR within the required time frame to request an IR.

§93.6  DADS Investigates: Informal Review

(a)
If an employee of a facility requests an IR, DADS sets an IR date no later than 30 calendar days after the date the request is received by DADS to allow the employee to dispute the findings by providing testimony, in person or by telephone, and supporting documentation to a designated, impartial Regulatory Services Division staff person at the local DADS regional office.
(1)
If the designated staff person does not uphold the findings, DADS does not record the employee's name or related information in the EMR.
(2)
If the designated staff person upholds the findings, DADS notifies the employee of the results of the IR. The employee is then entitled to notice of an opportunity for an administrative hearing, as described in 93.7 of this chapter.
(b)
If the employee of a facility does not request an IR, or fails to appear for a requested IR, DADS notifies the employee that an IR was not requested. The employee is then entitled to notice of an opportunity for an administrative hearing, as described in 93.7 of this chapter.

§93.7  DADS Investigates: Notice of Opportunity for Administrative Hearing

(a)
After the informal review process is completed for an employee of a facility, DADS reviews the findings and supporting documentation and sends the employee a written notice that includes:
(1)
a brief summary of the findings;
(2)
a statement that the employee may request an administrative hearing on the 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 or fails to respond timely to the written notice, the employee's name and related information is recorded 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 requests a hearing, the employee is granted an administrative hearing on the incident of reportable conduct before an administrative law judge at SOAH.
(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 recorded 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 records information in the EMR described in subsection (c) of this section regarding an employee:
(1)
when DADS investigates and all due process procedures are completed for a substantiated finding of reportable conduct;
(2)
as required by Texas Health and Safety Code, 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)
The due process procedure offered to an employee by DFPS, a federal or other state governmental entity, or DADS before a finding of abuse, neglect, or misappropriation is entered in the NAR or a finding of reportable conduct is entered in the EMR satisfies the due process required for listing the individual as unemployable in the EMR. DADS does not provide the employee with another informal review or administrative hearing, as described in 93.6 of this chapter (relating to DADS Investigates: Informal Review) or 93.7 of this chapter (relating to DADS Investigates: Notice of Opportunity for Administrative Hearing).
(c)
The following information is entered in the EMR in accordance with Texas Health and Safety Code, 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;
(5)
the address of the facility or agency;
(6)
the date the reportable conduct was committed; and
(7)
a description of the reportable conduct committed.

§93.9  Removing Information from the EMR

DADS may remove an employee's name from the EMR if:

(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.