HBA-DMD H.B. 2291 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2291 By: Naishtat Human Services 3/15/1999 Introduced BACKGROUND AND PURPOSE Under current law, if a social worker's license expires it may be renewed by paying fees; the social worker does not have to take an updated license examination. Also, the Texas State Board of Social Worker Examiners (board) cannot obtain records when a complaint has been filed against a licensed member, and social workers who report abuse or neglect are not protected from retaliation. H.B. 2291 modifies the requirements for licensure as a social work associate. This bill authorizes the board to impose an administrative penalty on a person who violates a rule or order adopted by the board and authorizes the attorney general to sue in order to collect the penalty. This bill also authorizes the board to compel witnesses with a subpoena for the investigation of an alleged violation. H.B. 2291 authorizes a person to report an incident that puts a client at risk of harm to the appropriate entity and prohibits retaliation against a person who reports a violation. Additionally, this bill allows a person who is alleged to have committed a violation or a person who is retaliated against for filing a complaint to seek attorney's fees and actual and punitive damages. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 50.017, Human Resources Code, as follows: Sec. 50.017. SOCIAL WORK ASSOCIATE. (a) Requires the Texas State Board of Social Worker Examiners (board) to consider a baccalaureate degree in the behavioral or social sciences or in a related field from an accredited educational institution as minimum evidence that an applicant is qualified to be examined for a license as a social work associate. Deletes an associate of arts degree in the behavioral sciences and a reasonable specified number of years of actual and active social work experience as minimum evidence that an applicant is qualified to be examined for a license as a social work associate. Makes conforming changes. (b) Authorizes a licensed social work associate to engage in the practice of social work or perform social work services only under the supervision of a licensed master social worker or licensed social worker. SECTION 2. Amends Chapter 50, Human Resources Code, by adding Sections 50.0225-50.0228, as follows: Sec. 50.0225. SUBPOENA. (a) Authorizes the board to request and, if necessary, compel by subpoena the attendance of witnesses for examination under oath and the production for inspection and copying of books, accounts, records, papers, correspondence, documents, and other evidence relevant to the investigation of an alleged violation of this chapter. (b) Authorizes the board, acting through the attorney general, to file suit to enforce the subpoena in a district court in Travis County or in the county in which a hearing conducted by the board may be held, if a person fails to comply with a subpoena. Requires the court, on finding that good cause exists for the issuance of the subpoena, to order compliance with the requirements of the subpoena. Authorizes the court to punish failure to obey the order of the court as contempt. Sec. 50.0226. REPORT OF VIOLATION. Authorizes a person licensed under this chapter, in a written and signed report to the appropriate licensing board, agency, or facility, to report an incident that the person has reasonable cause to believe has exposed a client to substantial risk of harm, including: (1) a failure to provide care that conforms to the minimum standards of acceptable and prevailing professional practice; (2) illegal billing practices; or (3) falsification of records. Sec. 50.0227. REPORTING IMMUNITY. Provides that a person who, without malice, makes a report authorized, or reasonably believed to be authorized, under Section 50.0226 is immune from civil liability, and is prohibited from being subjected to other retaliatory action as a result of making the report. Sec. 50.0228. CAUSE OF ACTION FOR RETALIATION. (a) Authorizes a person named as a defendant in a civil action or subjected to other retaliatory action as a result of filing a report authorized, or reasonably believed to be authorized, under Section 50.0226 to file a counterclaim in the pending action or prove a cause of action in a subsequent suit to recover defense costs, including reasonable attorney's fees and actual and punitive damages, if the suit or retaliatory action is determined to be frivolous, unreasonable, or taken in bad faith. (b) Prohibits a person from suspending, terminating the employment of, disciplining, or discriminating against, a person who makes a report, without malice, under Section 50.0226. (c) Establishes that a person who makes a report under Section 50.0226 has a cause of action against a person who violates Subsection (b). Authorizes the person to recover actual damages, including damages for mental anguish even if no other injury is shown; or $1,000, whichever is greater; exemplary damages; court costs; and reasonable attorney's fees. (d) Entitles a person, in addition to the amount recovered under Subsection (c), whose employment is suspended or terminated in violation of this section, to: (1) reinstatement in the employee's former position or severance pay in an amount equal to three months of the employee's most recent salary; and (2) compensation for wages lost during the period of suspension or termination. (e) Sets forth that a person who brings an action under this section has the burden of proof. Provides that it is a rebuttable presumption that the person's employment was suspended or terminated for making a report under Section 50.0226 if: (1) the person was suspended or terminated within 60 days after the date the report was made; and (2) the person to whom the report that is the subject of the cause of action was made or the court determines that the report was authorized under Section 50.0226, and made without malice. (f) Authorizes an action under this section to be brought in a district court of the county in which the plaintiff resides, the plaintiff was employed by the defendant, or the defendant conducts business. SECTION 3. Amends Section 50.023(e), Human Resources Code, by deleting "if an examination was originally required" from the provision that authorizes a person to obtain a new license or order of recognition by submitting to reexamination and complying with the requirements and procedures for obtaining an original license or order of recognition, rather than original license or certificate or order of recognition. SECTION 4. Amends Section 50.028, Human Resources Code, as follows: Sec. 50.028. New Title: CIVIL PENALTY. Subjects a person who violates an order of the board pertaining to the practice of social work to a civil penalty of not less than $50 and not more than $500 for each day of violation. SECTION 5. Amends the heading of Section 50.029, Human Resources Code, as follows: Sec. 50.029. New Title: SUIT FOR CIVIL PENALTY OR INJUNCTIVE RELIEF. SECTION 6. Amends Chapter 50, Human Resources Code, by adding Section 50.0295, as follows: Sec. 50.0295. ADMINISTRATIVE PENALTY. (a) Authorizes the board to impose an administrative penalty on a person licensed under this chapter who violates this chapter or a rule or order adopted under this chapter. (b) Prohibits the amount of the penalty from being less than $50 or exceeding $500, and each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. Requires that the penalty be based on certain criteria. (c) Authorizes the enforcement of the penalty to be stayed during the time the order is under judicial review if the person pays the penalty to the clerk of the court or files a supersedeas bond with the court in the amount of the penalty. Authorizes a person who cannot afford to pay the penalty or file the bond to stay the enforcement by filing an affidavit in the manner required by the Texas Rules of Civil Procedure for a party who cannot afford to file security for costs, subject to the right of the board to contest the affidavit as provided by those rules. (d) Authorizes the attorney general to sue to collect the penalty. (e) Considers a proceeding to impose the penalty to be a contested case under Chapter 2001 (Administrative Procedure), Government Code. SECTION 7.Effective date: September 1, 1999. Makes application of Sections 50.017, 50.023(e), 50.0226, 50.0227, 50.0228, and 50.0295 of this Act prospective. SECTION 8.Emergency clause.