(a) As used in this section, an unlicensed applicant or employee excludes licensed health professionals. A licensed health professional is an individual who is authorized and holds a license issued by the State of Texas to practice in the health care field. This term "licensed health professional" includes, but is not limited to, a physician, physician assistant, advanced practice registered nurse, registered nurse, licensed vocational nurse, social worker, counselor, dietitian, pharmacist, or psychologist.
(b) Each facility shall comply with the provisions of Health and Safety Code, Chapter 250 (relating to Nurse Aide Registry and Criminal History Checks of Employees and Applicants for Employment in Certain Facilities Serving the Elderly, Persons with Disabilities, or Persons with Terminal Illnesses).
(c) The facility shall obtain criminal history record information from the Department of Public Safety (DPS) for all unlicensed applicants for employment.
  (1) A facility shall obtain the information directly from the DPS or by paying a private agency to obtain criminal history record information directly from the DPS.
  (2) If an applicant has been convicted of an offense under Health and Safety Code, §250.006 (relating to Convictions Barring Employment), the facility shall determine whether the conviction bars the applicant from employment or whether the conviction is a contraindication to employment with the patients the facility serves.
  (3) If a facility determines that a conviction bars an applicant from employment in a facility, or is a contraindication to employment, the facility shall notify the applicant.
  (4) A facility shall not employ an unlicensed applicant who has been convicted of an offense listed in Health and Safety Code, §250.006, if the facility determines that the conviction bars employment or is a contraindication to employment with the patients the facility serves.
(d) Before a facility employs any unlicensed applicant, the facility shall search the nurse aide registry (NAR) and the employee misconduct registry (EMR) by calling the toll-free number, 1-(800) 452-3934, or by using the Employability Status Search website at http://www.dads.state.tx.us/providers/employability/esearch.cfm.
  (1) The facility shall receive the search results and verify that an unlicensed applicant is not designated in the NAR or the EMR as having a finding concerning abuse, neglect, or mistreatment of a patient, or misappropriation of a patient's property before employing the applicant.
  (2) A facility shall not employ a nurse aide until the facility verifies that the applicant is listed in the NAR and verifies that the applicant is not designated in the NAR or the EMR as having a finding concerning abuse, neglect, or mistreatment of a patient of a facility, or misappropriation of a patient's property.
(e) In addition to the initial verification of employability, a facility shall comply with the following requirements for all unlicensed employees:
  (1) conduct criminal history checks;
  (2) if the employee is a nurse aide, search the NAR annually as set forth in subsection (c) of this section to determine whether the employee is listed in the NAR;
  (3) search the NAR and the EMR annually as set forth in subsection (d) of this section to determine whether any employee is designated in the NAR or the EMR as having a finding concerning abuse, neglect, or mistreatment of a patient, or misappropriation of a patient's property;
  (4) maintain in each unlicensed employee's personnel file a copy of the results of the search conducted under this subsection; and
  (5) provide written information about the EMR to all unlicensed employees, including information that a person may not be employed if the person is listed in the EMR.
(f) A facility shall notify any employee if the facility determines that a conviction bars the employee from employment in a facility under Health and Safety Code, §250.006, or is a contraindication to employment.
(g) A facility shall immediately discharge any employee who is designated in the NAR and the EMR as having committed an act of abuse, neglect, or mistreatment of a patient of a facility, or misappropriation of a patient's property.
(h) A facility shall immediately discharge any employee whose criminal history check reveals conviction of a crime that bars employment under Health and Safety Code, §250.006, or that the facility determines is a contraindication to employment.
(i) In an emergency that requires immediate employment, a facility may hire an applicant on a temporary or interim basis before obtaining the results of a criminal conviction check.
  (1) The facility shall justify and document the emergency.
  (2) The facility shall verify that the applicant is not designated in the NAR or the EMR as having a finding concerning abuse, neglect, or mistreatment of a patient of a facility, or misappropriation of a patient's property.
  (3) The facility shall verify that a nurse aid applicant is listed in the NAR.
  (4) The facility shall request the DPS criminal conviction check within 72 hours of employment.
  (5) The facility shall ensure that the applicant/employee has no direct contact with a patient until the facility obtains the person's criminal history record information and verifies the person's employability.
(j) The facility shall ensure that the criminal history records are used exclusively by the facility on behalf of the applicant or employee who is the subject of the records.
  (1) All criminal records and reports and the information they contain are privileged information.
  (2) The facility shall ensure that this information is not released or otherwise disclosed to any person or agency except on court order or with the written consent of the person being investigated.
(k) A person commits an offense if the person releases or otherwise discloses any information received under this chapter except as allowed in subsection (j) of this section. An offense under this section is a Class A misdemeanor.
(l) A facility or an officer or employee of a facility is not civilly liable for failure to comply with this chapter if the facility makes a good faith effort to comply.

Source Note: The provisions of this §506.36 adopted to be effective March 20, 2011, 36 TexReg 1672; transferred effective June 1, 2019, as published in the Texas Register May 17, 2019, 44 TexReg 2467