May 8, 2000
Elizabeth D. Seale
Vice Chair, San Antonio
John A. Cuellar
Terry Durkin Wilkinson
|To:||Nursing Facilities (NFs), Assisted Living (AL), Adult Day Care (ADC), and Intermediate Care Facilities for Persons with Mental Retardation and Related Conditions (ICFMR/RC) and Community Based Alternatives /Community Care for the Aged and Disabled (CBA/CCAD) Adult Foster Care (AFC) Providers licensed by the Department of Human Services|
|Re:||Provider Letter 00-11 -- Informal Reconsideration and Appeals Process for Unlicensed Employees Referred to the Employee Misconduct Registry (EMR).|
The purpose of this letter is to provide facilities and their unlicensed direct care staff with policy and procedural information regarding the Employee Misconduct Registry for Unlicensed Employees, including the Informal Reconsideration and Appeals Process.
Chapter 253 - Employee Misconduct Registry has been added to the Health and Safety Code by the 76th Texas Legislature as a tracking tool for resident abuse, neglect, exploitation, or misappropriation of resident or consumer property by unlicensed or uncredentialed employees in facilities regulated by the Texas Department of Human Services (TDHS).
Effective May 1, 2000, before a facility may hire an unlicensed employee, the facility must search the Employee Misconduct Registry and the Nurse Aide Registry by calling the Department's toll free automated number, 1-800-452-3934, to determine if the person is listed as having abused, neglected, exploited a resident, or misappropriated a resident's or consumer's property. If the person's name has been entered on either registry, the facility is prohibited from employing the individual.
For the purpose of this document, the following definitions apply:
Employee is defined as an individual who provides direct care services to a resident or consumer of a facility and is not licensed or credentialed by a state agency to provide the services the employee performs at the facility.
Direct care is defined as personal care services, active treatment, attendant care, and any other personal services to a resident. Direct care employees include any personnel who provide eating, bathing, dressing, and ambulatory services and assistance to residents.
The facility is required to provide, upon hiring and to all unlicensed employees, written documentation about the Employee Misconduct Registry, including a statement indicating that a person may not be employed if listed on the registry. Facilities may distribute this document to their unlicensed employees in order to meet this requirement.
Informal Reconsideration (IR)
When the department receives a report alleging that an employee of a facility has abused, neglected, exploited a resident, or misappropriated a resident's or consumer's property, the department initiates an investigation to determine whether the act was committed.
If after the investigation, there is a preliminary finding of misconduct against an unlicensed employee, a written notice of intent to refer to the Employee Misconduct Registry is provided to the employee. The written notification must include:
notice of the act or conduct alleged to warrant the proposed findings, and
the unlicensed employee's right to an IR to show compliance with the law for the purpose of employability.
In order to request an IR, an informal review by the department, the employee must submit a written request for the IR and any supporting documentation refuting the allegations to the state office Informal Appeals Coordinator, Informal Appeals and Investigations Section within ten (10) calendar days from the date of receipt of the LTC-R notice.
Upon receipt of the request for an IR, the Informal Appeals Coordinator schedules the IR with the employee. The IR will be conducted by telephone, unless a request is made, and approved by the Informal Appeals Coordinator, for a personal appearance.
As a result of the IR, outcomes may include:
Findings Overturned - The employee receives a written reversal of the proposed findings from the LTC-R state office Informal Appeals Coordinator. No further adverse action will be taken.
Findings Upheld - The employee receives a written affirmation of the proposed finding(s) by notice of adverse action from the LTC-R state office Informal Appeals Coordinator. Copies of the notice and the referral packet are submitted to the Credentialing Department.
If an IR is requested and conducted, the employee receives a written notice of the final decision by the LTC-R state office Informal Appeals Coordinator within thirty (30) calendar days from the date the informal reconsideration was conducted.
Should an employee fail to request an IR within the specified ten (10) calendar day time frame, or fail to appear at a scheduled IR, the findings will be upheld. The employee will receive a notice of adverse action from the LTC-R state office Informal Appeals Coordinator.
If the findings are upheld by the Informal Appeals and Investigations Section, the employee will receive a follow-up adverse action notice from the state office Credentialing Department advising the employee of the opportunity for a formal hearing with the State Office of Administrative Hearings (SOAH).
The employee must request a hearing within thirty (30) calendar days from receipt of the Credentialing notice of the adverse action by:
submitting a request,
with a copy of the notification letter, and
any supporting documentation refuting the allegations to the:
Texas Department of Human Services,
Hearings Division, Mail Code W-613
P.O. Box 149030,
Austin, TX 78714-9030.
A copy of the request and supporting documentation must also be submitted to the Employee Misconduct Registry Program at the:
Texas Department of Human Services
Credentialing Department, Mail Code Y-978
P.O. Box 149030,
Austin, TX 78714-9030
If a formal hearing is requested and conducted, the employee is notified of the final decision by TDHS Hearings Division within one hundred and twenty (120) calendar days of the date the request was received. If the employee does not appeal the decision, the findings that are upheld are entered on the Employee Misconduct Registry.
If the employee or their representative fails to appear at a scheduled hearing, the Administrative Law Judge (ALJ) may sustain TDHS's finding(s). If the employee does not appeal the decision, the Credentialing Department enters the finding(s) on the Employee Misconduct Registry.
If no hearing is requested within the specified time frame, the Credentialing Department enters the finding(s) on the Employee Misconduct Registry.
The employee may, within thirty (30) calendar days, file a petition for a judicial review, contesting the finding(s) of misconduct. If the employee fails to request a hearing within the specified time frame, or fails to appeal a hearing decision within the specified time frame, or if the finding(s) is upheld by the court; the Credentialing Department will enter the finding(s) on the Employee Misconduct Registry.
If you have any questions, please contact the Employee Misconduct Registry Manager, Credentialing Department, Office of Program Integrity (OPI), (512) 231-5800, or contact the Texas Department of Human Services, Credentialing Department, Mail Code Y- 978, P.O. Box 149030, Austin, Texas 78714-9030.
- Original Signature on File -
Deputy Commissioner of LTCR-HCSSA