Employee Misconduct Registry Handbook

Chapter 93, EMR

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.

Revisions, EMR

Revision 14-1, EMR, Clarifies Rules; Adds Entities Subject to EMR Requirements; Updates Terminology; Makes Editorial and Organizational Changes

Revision Notice 14-1; Effective October 19, 2014

This revision clarifies rules regarding the Employee Misconduct Registry (EMR), which the Texas Department of Aging and Disability Services (DADS) maintains.

The revision also implements House Bill (H.B.) 2683 and Senate Bill (S.B.) 492, 83rd Legislature, Regular Session, 2013. H.B. 2683 amended Texas Health and Safety Code (THSC), Chapter 253, to make individual employers, financial management service agencies (FMSAs), and employees in the consumer directed services (CDS) option subject to EMR requirements. S.B. 492 also amended THSC, Chapter 253, to make prescribed pediatric extended care centers (PPECCs), which are licensed under THSC, Chapter 248A, and employees of those centers subject to EMR requirements.

The revision also updates terminology and makes editorial and organizational changes for clarity and consistency.

§93.1 adds that a person listed on the EMR is not employable by an individual employer participating in the CDS option and clarifies the purpose of the chapter.

§93.2 revises the definitions of "abuse," "administrative hearing," "employee," "exploitation" and "neglect" and adds definitions of "CDS option," "FMSA" and "individual employer" to address the addition of the CDS option to the requirements of the chapter. It also adds PPECC to the definition of "facility"; revises the definition of "reportable conduct" to more accurately align with THSC, Chapter 253, governing the EMR; updates definitions to include person-first respectful phrasing; adds a definition of "THSC”; and includes minor editorial changes that make the format of the definitions more consistent.

§93.3 specifies that an individual employer or an FMSA on behalf of an individual employer must use the EMR to determine if an employee is listed as unemployable; that an individual employer must not hire a person listed in the EMR as unemployable; that an individual employer must provide written information about the EMR to an employee; and that an individual employer or FMSA must search the EMR and Nurse Aide Registry (NAR) annually. It also provides that a copy of a search of the EMR or NAR must be maintained in a facility's, agency's or individual employer's books and records, but no longer specifies that the copy be maintained in a personnel file.

§93.4 adds abuse, neglect or exploitation by an employee of an individual employer as an allegation that the Texas Department of Family and Protective Services (DFPS) is responsible for investigating. It also clarifies that if DADS determines an employee of a facility has committed reportable conduct, DADS complies with §§93.5–93.7, which apply only to an investigation conducted by DADS.

§93.5 specifies that DADS sends a summary of a finding of reportable conduct and the facts on which the finding is based to an employee who DADS finds to have committed reportable conduct. It clarifies that an employee must make a request for an informal review (IR) in writing no later than 10 calendar days after the date the employee receives written notice of the finding of reportable conduct from DADS.

§93.6 clarifies the description of the IR process that is available to an employee of a facility, but the amendment does not make any substantive changes to the process.

§93.7 clarifies the information that is included in the written notice sent to an employee of a facility after the IR process is completed. It also states that the THSC requires an administrative hearing to be completed within 120 days after the request by the employee of a facility is received.

§93.8 clarifies the due process that is available to an employee before a finding of reportable conduct is entered in the EMR. The information relating to an employee of an individual employer that will be entered in the EMR is added in subsection (c).

§93.9 clarifies that an employee's name remains in the EMR unless removed in accordance with this section.

Revision 10-1, EMR, Nurse Aide Registry (NAR) and Employee Misconduct Registry (EMR) Requirements

Revision Notice 10-1; Effective September 1, 2010

 

This revision transfers responsibility for investigation of reports of abuse, neglect and exploitation at licensed ICFs/MR from DADS to the Department of Family and Protective Services (DFPS). The revision also requires facilities to conduct an annual search of the NAR and EMR and maintain a copy of the results of the searches in an employee's personnel file.

The following changes were made:

§93.1 specifies that DADS maintains the EMR and that a person listed in the EMR is not employable in a facility or agency.

§93.2 adds definitions of "abuse," "neglect" and "exploitation" to clarify that these terms are defined by the statute or rule governing an investigation in a particular setting; lists the specific entities included within the terms "agency" and "facility"; replaces "formal hearing" with "administrative hearing" and revises the definition of "administrative law judge" and "SOAH" to reflect the new term; revises the definition of "employee" to more closely track the statutory definition; revises the definition of "EMR" to state that the EMR is the registry established in accordance with Texas Health and Safety Code, Chapter 253; adds a definition of "NAR" to replace the description of the registry in §93.3; and revises the definition of "reportable conduct" to reflect that it involves conduct affecting a person receiving agency or facility services.

§93.3 deletes a description of the NAR because information is included in the definition of NAR; adds a requirement that the written information provided to a new employee include a reference to the statute and rule governing the EMR and a link to the DADS website; and deletes a list of facilities and agencies because it duplicates the definitions. As required by Senate Bill 806, the amendment requires a facility and agency to search the NAR and EMR annually to ensure that an employee is not designated in either registry as unemployable and requires that the facility or agency maintain a copy of the results of the initial and annual searches in the employee's personnel file.

§93.4 clarifies that DADS investigates allegations made against facility employees and DFPS investigates allegations made against agency employees; clarifies DADS' responsibility for the provision of due process; and clarifies which sections of Chapter 93 apply only to DADS investigations.

§93.5 clarifies the information that must be provided to an employee of a facility when DADS determines that the employee has committed reportable conduct.

§93.6 establishes a 30-day time frame for DADS to conduct an informal review; adds that, during an informal review, an employee may submit supporting documentation to dispute DADS' finding of reportable conduct; and clarifies that any informal review will be conducted by an impartial DADS staff person designated by DADS' Regulatory Services Division. The amendment also clarifies that an employee is entitled to notice of an opportunity for an administrative hearing if the DADS staff person upholds a finding of reportable conduct or if the employee fails to request an informal review or fails to appear at a requested informal review.

§93.7 revises the title of the section to refer to an "administrative" hearing; clarifies what must be included in the written notice to an employee after the informal review process is complete; allows DADS to record an employee's name in the EMR if the employee fails to respond timely to the notice of opportunity for an administrative hearing; and clarifies the information to be recorded in the EMR when a final order is issued.

§93.8 specifies that, when DADS lists a nurse aide's certification as revoked in the NAR because the nurse aide has committed abuse, neglect or misappropriation, DADS records information in the EMR; and explains that if another state or federal governmental entity makes a referral to DADS to include information about a person in the EMR, that entity, not DADS, provides due process to the person.

§93.9 allows DADS to remove an employee's name from the EMR when an entry in the EMR was based on an entry in the NAR and the entry is subsequently removed from the NAR.

Revision 08-1, EMR, Investigating Allegations of Abuse, Neglect and Exploitation of Children

Revision Notice 08-1; Effective September 1, 2008

This handbook revision reflects the repeal of Chapter 93 and the adoption of new Chapter 93, which gives the responsibility for investigating allegations of abuse, neglect and exploitation of children by home and community support services agency employees to the Department of Aging and Disability Services (DADS). Part of the implementation of this new responsibility requires the reorganization of DADS’ rules governing the Employee Misconduct Registry (EMR). The new rules also add and update definitions, update agency names and correct rule cross-references.

The following changes were made:

§93.1 updates the agency name.

§93.2 updates definitions, adds a definition for "child" and amends the definition of "facility" by adding hospice inpatient units and hospice residential units.

§93.3 states that a facility or agency must check the EMR and the Nurse Aide Registry (NAR) to determine if an applicant for employment is listed as unemployable, states that a facility or agency must not employ a person listed in the EMR or NAR as unemployable, and requires facilities and agencies to provide information about the EMR to employees.

§93.4 sets out the allegations of reportable conduct that DADS is responsible for investigating to add that DADS is responsible for the investigation of allegations of reportable conduct and provision of due process for a home and community support services agency employee who provides services to a child.

§93.5 describes the procedures DADS follows to provide notice to an employee after an investigation in which DADS determines evidence exists to indicate that the employee has committed a reportable act.

§93.6 describes the procedures DADS follows if an employee requests an informal review.

§93.7 describes the procedures and timeline that DADS follows to provide an employee with the notice of opportunity for a formal hearing and states that if the employee does not respond to the written notice and does not request a formal hearing, the reportable conduct is recorded in the EMR.

§93.8 describes the procedures DADS follows and the information DADS enters in the EMR.

§93.9 describes DADS' procedures for removing an employee's name from the EMR.

Revision 04-1, EMR, Plain English Revision of Employee Misconduct Registry (EMR) Rules

Revision Notice 04-1; Effective May 1, 2004

This revision reorganizes the rules in Chapter 93, which have been rewritten in plain English question-and-answer format. The new sections expand the definitions section, explain the requirements for use of the EMR, separate the process for facility and agency referrals, define the process once reportable conduct occurs, and provide a list of recordable information in the EMR.

The new handbook is also available online at:
Intranet: http://inside/handbooks/emr/
Internet: http://dhs.state.tx.us/handbooks/emr/

Contact Us, EMR

For questions about the Employee Misconduct Registry Handbook, email: NfRules@hhsc.state.tx.us

For technical or accessibility issues with this handbook, email: handbookfeedback@hhsc.state.tx.us