Revision 21-1; Effective April 26, 2021

 

The Employee Misconduct Registry (EMR) is a public database maintained by HHSC. The purpose of the EMR is to ensure that unlicensed personnel who commit acts of abuse, neglect, or exploitation against individuals receiving services are denied employment with certain facilities and providers.

A person whose name is listed on the EMR is permanently denied employment with certain facilities and providers. Facilities and providers whose employees are subject to EMR may not employ a person listed on the EMR. Other employers may use the EMR as an employment screening tool.

The Employee Misconduct Registry Search System is a public database and may be searched by any interested party.

See related
Health and Safety Code, Chapter 253
Human Resources Code, Chapter 48
Texas Administrative Code, Title 26, Chapter 711, Subchapter L.

 

5100 Determining EMR Eligibility

Revision 21-1; Effective April 26, 2021

 

To be eligible for the EMR process, the investigation must show that:

  • the employee meets the criteria in 5110 EMR-Eligible Employees;
  • an EMR-eligible employee has a confirmed finding of abuse, neglect or exploitation; and
  • the confirmed finding of abuse, neglect, or exploitation rises to the level of reportable conduct.

A reportable conduct designation establishes that the criteria for EMR eligibility has been met and does not result in any additional allegation or finding.

See related 26 TAC Chapter 711, Subchapter L.

 

5110 EMR-Eligible Employees

Revision 20-2; Effective August 1, 2020

 

To be placed on the EMR, the designated perpetrator must:

  • meet the definition of an employee as established in the Texas Resources Code Chapter 48; and
  • be an employee, contractor, volunteer or agent of an agency, as defined in 26 TAC §711.1406.

Most licensed professionals are not eligible for EMR, although they may be subject to other registries. A certified nurse aide is not licensed and therefore is EMR-eligible.

See related 26 TAC §711.1402.

 

5120 Definition of Reportable Conduct

Revision 21-1; Effective April 26, 2021

 

Reportable conduct is:

  • abuse or neglect that causes or may cause death or harm to an individual receiving services;
  • sexual abuse of an individual receiving services;
  • financial exploitation of an individual receiving services in an amount of $25 or more; or
  • emotional, verbal, or psychological abuse that causes harm to an individual receiving services.

See related
Texas Human Resources Code §48.401
26 TAC §711.1408
 

5130 Definition of Harm

Revision 20-2; Effective August 1, 2020

 

Abuse or Neglect

To determine whether a confirmed finding of abuse or neglect rises to the level of reportable conduct, harm is defined as:

  • a significant injury or risk of significant injury, including a fracture, dislocation of any joint, an internal injury, a contusion larger than 2.5 inches, a concussion, a second- or third-degree burn, or any laceration requiring sutures;
  • an adverse health effect that results or is at risk of resulting from failure to receive medications in the amounts or at the times prescribed; or
  • any other harm or risk of harm that warranted, or would reasonably be expected to have warranted, medical treatment or hospitalization.

Emotional, Verbal, or Psychological Abuse

To determine whether a confirmed finding of emotional, verbal, or psychological abuse rises to the level of reportable conduct, harm is defined as substantial harm as evidenced by observable signs of substantial physical or emotional distress or as diagnosed by an appropriate medical professional.

See related 26 TAC §711.1408.

 

5200 Notice of Finding to an Employee Designated as a Perpetrator

Revision 20-2; Effective August 1, 2020

 

When investigating an employee whose conduct is reportable to EMR, the EMR coordinator sends the employee a Notice of Finding letter.

For information regarding the contents of the notice, see 26 TAC §711.1413.

An employee of a state operated facility also receives notice that they are entitled to a grievance hearing on disciplinary action based on a finding of reportable conduct. This request is separate and in addition to a request for an EMR hearing. An EMR hearing takes place before the grievance hearing.

See related 26 TAC §711.1434.

 

5210 Request for an EMR Hearing by the Employee

Revision 20-2; Effective August 1, 2020

 

To request a hearing, an employee submits a Request for Hearing, as explained in the Notice of Finding letter.

See related 26 TAC §711.1415.

 

Deadlines for Filing

The employee must file the Request for Hearing no later than 30 calendar days from the date that they receive the Notice of Finding.

See related 26 TAC §711.1417(a).

 

Notice of Finding to the Employee

PI presumes that the employee received the Notice of Finding on the date of delivery, as indicated on the return receipt for the certified mailing.

If the certified mailing is returned unclaimed but the regular mailing is not returned, the Notice of Finding is presumed received on the third business day following the date that the notice was mailed to the employee’s last known address.

See related 26 TAC §711.1417(b).

For instructions on employees filing a Request for Hearing letter by mail, fax or hand delivery, see 26 TAC §711.1417(c).

 

Late Request for an EMR Hearing

If an employee files a Request for Hearing after the deadline, PI notifies the employee that:
  •  the request was not filed by the deadline;
  •  no hearing will be granted; and
  •  their name will be submitted for inclusion in the EMR.

See related 26 TAC §711.1417(d).

 

Lateness Disputed

If an employee disputes missing the deadline to request a hearing, they may request a hearing that is limited solely to determining the timeliness of the request.

If, as a result of that hearing, the employee proves that the original Request for Hearing was filed on time, a separate hearing is scheduled as soon as possible to determine whether the employee committed reportable conduct.

See related 26 TAC §711.1417(e).

 

5300 The EMR Hearing

Revision 20-2; Effective August 1, 2020

 

Immediately upon receiving a Request for Hearing, PI forwards the request to the docket clerk for administrative hearings who assigns the case to an administrative law judge.

The administrative law judge:

  •   schedules a hearing as soon as possible; and
  •   sends a Notice of Hearing letter to the employee and to the EMR attorney.

The hearing is usually held in the same PI district where the alleged reportable conduct took place.

See related 26 TAC §711.1421.

 

5310 Rescheduling an EMR Hearing

Revision 20-2; Effective August 1, 2020

 

Either the employee or PI may request that the administrative law judge reschedule an EMR hearing for good cause.

Except in cases of emergency, a request to reschedule must be made no later than three business days before the hearing date.

See related 26 TAC §711.1423.

 

5320 Withdrawing a Request for an EMR Hearing

Revision 20-2; Effective August 1, 2020

 

Withdrawal by Employee

An employee may withdraw a request for an EMR hearing any time before the hearing is conducted.

An employee who withdraws a request for a hearing is deemed to have accepted the finding of reportable conduct and their name will be submitted to the EMR.

See related 26 TAC §711.1425.

 

Withdrawal by PI

PI may withdraw from an EMR hearing any time before the hearing is conducted.

If PI withdraws from the hearing, the EMR attorney notifies the PI program administrator and EMR coordinator.

The EMR coordinator sends a Notice of Review of Reportable Conduct Finding to the employee, the administrator, and if appropriate, the contractor’s CEO and the HHSC Waiver Survey and Certification office.

 

5330 Failure to Appear for an EMR Hearing

Revision 20-2; Effective August 1, 2020

 

If either PI or the employee fails, without good cause, to appear at an EMR hearing, the administrative law judge may issue a default judgment against the party that failed to appear.

See related 26 TAC §711.1426.

 

5340 The Decision of the Administrative Law Judge

Revision 20-2; Effective August 1, 2020

 

The administrative law judge prepares a hearing order that is mailed to the employee.

For information regarding the contents of the hearing order, see 26 TAC §711.1429(a).

 

5350 Request by an Employee for a Judicial Review

Revision 21-1; Effective April 26, 2021

 

An employee may request judicial review of an administrative law judge’s finding of reportable conduct.

An employee must first file a timely motion for rehearing as a prerequisite to judicial review. The party filing the motion for rehearing must do so within 25 days after the administrative law judge signed the hearing order. The motion for rehearing must be served on the administrative law judge and PI attorney of record.

To seek judicial review of a hearing order, the employee files a timely petition for judicial review in a Travis County district court within 30 days after the hearing order is final and appealable, as provided by Texas Government Code, Chapter 2001, Subchapter G.

See related 26 TAC §711.1431.

 

5360 Providing Notice if a Finding Is Modified or Reversed After Judicial Review

Revision 20-2; Effective August 1, 2020

 

If a finding of reportable conduct is modified or reversed as a result of a judicial review, the EMR coordinator provides notice of the final outcome to any person or entity that was previously notified of PI’s original finding.

See related 26 TAC §711.1432.

 

5400 Information Forwarded to HHSC for Recording in EMR

Revision 20-2; Effective August 1, 2020

 

If an employee accepts a finding of reportable conduct, or the finding is sustained following all administrative remedies, the EMR coordinator forwards the information related to the finding to HHSC to be recorded in the EMR database.

See related 26 TAC §711.1432.

 

5500 Grievance Hearings

Revision 21-1; Effective April 26, 2021

 

HHSC employees who disagree with employer actions based on PI findings may file a grievance with the employer. Employer action examples include:

  • leave without pay;
  • letters of reprimand ; or
  • termination.  

At the grievance hearing, a presiding HHSC Appeals Division administrative law judge may uphold all or part of the investigation findings.

If the employee has been referred to the EMR, the grievance hearing will not take place until the EMR proceedings have been completed.

See Section 5000, The Employee Misconduct Registry.

HHS Human Resources Policy Manual, Chapter 1