06-2019

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Introduction

Chapter 250, Health and Safety Code, requires that persons convicted of certain crimes may not be employed in direct contact with an individual in specified facilities and agencies providing care to the aged and disabled. Therefore, criminal history checks on certain employees must be performed prior to an offer of permanent employment with the facility or agency except in emergency situations.

 

Statutory Authority

Health and Safety Code, Chapter 250, Vernon's Texas Civil Statutes.

 

Facilities and Agencies Covered

Criminal history checks are required for providers listed below:

  • Nursing home, custodial care home, or other institution licensed by the Texas Health and Human Services Commission (HHSC) under Chapter 242, Health and Safety Code.
  • Assisted living facility licensed by HHSC under Chapter 247, Health and Safety Code.
  • Adult day care facility or adult day health care facility licensed by HHSC under Chapter 103, Human Resources Code.
  • Facility for persons with intellectual disabilities licensed or certified by HHSC, or licensed by HHSC under Chapter 252, Health and Safety Code.
  • Intermediate care facilities serving individuals with an intellectual disability or related conditions (ICF/IID) that is certified by HHSC to participate in the Medicaid program under Title XIX of the Social Security Act (42 U.S.C. Section 1396 et seq.).
  • Adult foster care providers that contract with HHSC.
  • Home and community support services agencies licensed by HHSC under Chapter 142, Health and Safety Code.

 

Employees Who Must be Checked

Anyone made an offer of employment in one of the covered agencies/facilities or who applies for a contract to provide services in one of the covered agencies/facilities must have a criminal history check, unless the person is licensed under another law of this state.

 

Conducting Criminal History Checks

An agency/facility may employ a private agency to secure criminal history information from the Department of Public Safety (DPS), or may request the criminal history information directly from DPS by:

  • sending $10 per name and the request to Crime Records Department, Texas Department of Public Safety, P.O. Box 15999, Austin, Texas 78765. The cost when requesting a fingerprint check is about $15 per name; or
  • accessing the DPS internet site: http://records.txdps.state.tx.us/. The internet request will give you immediate results and cost about $3 per name.

The internet criminal history check satisfies the law provided that an agency/facility prints out the page from the record, including date checked, and retains the hard copy in the personnel file for review by a survey team.

 

Offenses

Convictions that are automatic bars to employment:

  • Any offense under Chapter 19, Texas Penal Code (criminal homicide). Includes murder, capital murder, manslaughter and criminally negligent homicide.
  • Any offense under Chapter 20, Texas Penal Code (kidnapping and unlawful restraint). Includes kidnapping, aggravated kidnapping and false imprisonment.
  • An offense under Section 21.11, Texas Penal Code (indecency with a child).
  • An offense under Section 22.011, Texas Penal Code (sexual assault).
  • An offense under Section 22.02, Texas Penal Code (aggravated assault).
  • An offense under Section 22.04, Texas Penal Code (injury to a child, elderly individual or disabled individual).
  • An offense under Section 22.041, Texas Penal Code (abandoning or endangering a child).
  • An offense under Section 22.08, Texas Penal Code (aiding suicide).
  • An offense under Section 25.031, Texas Penal Code (agreement to abduct from custody).
  • An offense under Section 25.08, Texas Penal Code (sale or purchase of a child).
  • An offense under Section 28.02, Texas Penal Code (arson).
  • An offense under Section 29.02, Texas Penal Code (robbery).
  • An offense under Section 29.03, Texas Penal Code (aggravated robbery).

An agency/facility shall immediately discharge any employee in a position involving direct contact with an individual if one or more of the above convictions apply to that employee, or if there is any other conviction on that person's record that the facility determines is a contraindication to employment, as provided by Chapter 250, Health and Safety Code.

 

Time Limit for Requesting Check

An agency/facility must obtain the criminal history information before a person may be offered employment in a position that includes direct contact.

 

Emergency Employment

An agency/facility may employ a person pending the receipt of results of a criminal history check in an emergency situation requiring immediate employment. An agency/facility must provide the agency's/facility's appropriate regulatory agency with the necessary information on a job applicant within 72 hours of employment under these emergency provisions.

 

Notification of Applicant

The agency/facility must inform each person that applies for employment that the agency/facility is required to conduct a criminal conviction check before it may make an offer of employment to the applicant and that the agency/facility will request a criminal conviction check on the applicant.

 

Results of Criminal Conviction Check

An agency/facility will receive a written response to their inquiry. If the agency/facility receives a notice that a person has been convicted of an offense other than those constituting a bar to employment, the agency/facility must determine whether the offense is a contraindication to employment.

 

Employee Denial of Conviction

A computer match provides information about convictions using the person's:

  • name,
  • date of birth,
  • Social Security number,
  • sex, and
  • race.

If a conviction is found, but the applicant or employee denies having been convicted of the offense, positive identification or elimination can be obtained by fingerprint comparison through the Department of Public Safety. The employee should provide the Department of Public Safety with a properly prepared and certified fingerprint card, and request a corrected criminal history check.

 

Confidentiality of Criminal History Records

All criminal records received by the agency are privileged information and are for the exclusive use of HHSC and the agency/facility which requested the information. The records may not be released or otherwise disclosed to any person or agency except on court order, or with the written consent of the person being investigated. A person commits an offense if the person releases or otherwise discloses any information received under this law without the authorization described above. The law does not allow sharing information with other providers or individuals without the written authorization of the applicant or employee.

 

Shared Appendix 02

This appendix appears in the following handbooks:

Contracting to Provide Residential Care Services (CPRCS): Appendix III
Contracting to Provide Primary Home Care (CPPHC): Appendix VIII
Contracting to Provide Special Services to Persons with Disabilities (CPSSPD): Appendix IV
Day Activity and Health Services Provider Manual (DAHS): Appendix VII
Emergency Response Services Provider Manual (ERS): Appendix III