By: Truan, West S.B. No. 91
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the identification of children suffering from lead
1-2 poisoning and to control measures for lead contamination; providing
1-3 civil penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle D, Title 2, Health and Safety Code, is
1-6 amended by adding Chapter 87 to read as follows:
1-7 CHAPTER 87. CHILDHOOD LEAD POISONING PREVENTION
1-8 SUBCHAPTER A. GENERAL PROVISIONS
1-9 Sec. 87.001. SHORT TITLE. This chapter may be cited as the
1-10 Childhood Lead Poisoning Prevention Act.
1-11 Sec. 87.002. DEFINITIONS. In this chapter:
1-12 (1) "Authorized agent" means an employee of the
1-13 department appointed by the director to enforce this chapter.
1-14 (2) "Child care" includes a school, preschool,
1-15 kindergarten, nursery school, or other similar activity that
1-16 provides care or instruction for young children.
1-17 (3) "Child care facility" means a public place or a
1-18 residence in which a person furnishes child care.
1-19 (4) "Director" means the director of the Department of
1-20 Public Health.
1-21 (5) "Health authority" means a physician appointed as
1-22 such under Chapter 121.
1-23 (6) "Health professional" means an individual whose:
1-24 (A) vocation or profession is directly or
2-1 indirectly related to the maintenance of health in another
2-2 individual; and
2-3 (B) duties require a specified amount of formal
2-4 education and may require a special examination, certificate or
2-5 license, or membership in a regional or national association.
2-6 (7) "Lead" includes metallic lead and lead-containing
2-7 materials.
2-8 (8) "Lead poisoning" means the presence of blood lead
2-9 concentrations known to be associated with mental and physical
2-10 disorders due to absorption, ingestion, or inhalation of lead as
2-11 specified in the most recent criteria issued by the United States
2-12 Department of Health and Human Services, United States Public
2-13 Health Service, Centers for Disease Control of the United States
2-14 Public Health Service, or other national public health organization
2-15 specified by board rule.
2-16 (9) "Local health department" means a department
2-17 created under Chapter 121.
2-18 (10) "Other benefit" means a benefit, other than a
2-19 benefit under this chapter, to which an individual is entitled for
2-20 payment of the costs of services and includes:
2-21 (A) benefits available under:
2-22 (i) an insurance policy, group health
2-23 plan, or prepaid medical care plan;
2-24 (ii) Title XVIII of the Social Security
2-25 Act (42 U.S.C. Section 1395 et seq.);
2-26 (iii) Title XIX of the Social Security Act
2-27 (42 U.S.C. Section 1396 et seq.);
3-1 (iv) the Veterans Administration;
3-2 (v) the Civilian Health and Medical
3-3 Program of the Uniformed Services; and
3-4 (vi) workers' compensation or any other
3-5 compulsory employers insurance program;
3-6 (B) benefits available under a public program
3-7 created by federal or state law or by ordinance or rule of a
3-8 municipality or political subdivision of the state, excluding
3-9 benefits created by the establishment of a municipal or county
3-10 hospital, a joint municipal-county hospital, a county hospital
3-11 authority, a hospital district, or the facilities of a publicly
3-12 supported medical school; or
3-13 (C) benefits resulting from a cause of action
3-14 for health care expenses or a settlement or judgment based on the
3-15 cause of action, if the expenses are related to the need for
3-16 services provided under this chapter.
3-17 (11) "Owner" means a person who, alone, jointly, or
3-18 severally with others, has title to any residence or residential
3-19 unit, regardless of actual possession of the residence or unit, or
3-20 has charge, care, or control of a residence or residential unit as
3-21 owner or agent of the owner or as executor, administrator, trustee,
3-22 or guardian of the estate of the owner. The term does not include
3-23 a bank, lending institution, mortgage company, or mortgagee unless
3-24 the mortgagee takes actual physical possession under applicable
3-25 law.
3-26 (12) "Physician" means a person licensed to practice
3-27 medicine by the Texas State Board of Medical Examiners.
4-1 (13) "Provider" means a person who, through a grant or
4-2 contract with the department or through other means approved by
4-3 board rule, furnishes program services under Subchapter C that are
4-4 purchased by the department for the purposes of this chapter.
4-5 (14) "Public health district" means a district created
4-6 under Chapter 121.
4-7 (15) "Public health region" means a geographic area of
4-8 the state designated by the board for the provision of public
4-9 health services under Chapter 121.
4-10 (16) "Public health services" has the meaning given
4-11 that term by Chapter 12.
4-12 (17) "Public place" means all or any portion of an
4-13 area, a building or other structure, or a conveyance that is not
4-14 used for private residential purposes, regardless of ownership.
4-15 (18) "Regional director" means a physician appointed
4-16 by the board as the chief administrative officer of a public health
4-17 region under Chapter 121.
4-18 (19) "Residence" means a building or structure or a
4-19 portion of a building or structure that is occupied in whole or in
4-20 part as the private home, dwelling, or sleeping place of one or
4-21 more individuals and includes a residence that serves as a private
4-22 child care facility.
4-23 (20) "Screening test" means a rapid analytical
4-24 laboratory procedure for determining the need for further
4-25 diagnostic evaluation.
4-26 Sec. 87.003. CONFIDENTIALITY. (a) Except as specifically
4-27 authorized by this chapter, reports, records, and information
5-1 furnished to a health authority, a regional director, or the
5-2 department that relate to cases or suspected cases of childhood
5-3 lead poisoning are confidential and may be used only for the
5-4 purposes of this chapter.
5-5 (b) Reports, records, and information relating to cases or
5-6 suspected cases of childhood lead poisoning are not public
5-7 information under the open records law, Chapter 424, Acts of the
5-8 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
5-9 Texas Civil Statutes), and may not be released or made public on
5-10 subpoena or otherwise except as provided by this chapter.
5-11 (c) Medical, epidemiologic, or toxicologic information may
5-12 be released:
5-13 (1) for statistical purposes if released in a manner
5-14 that prevents the identification of any person;
5-15 (2) with the consent of each person identified in the
5-16 information;
5-17 (3) to medical personnel, appropriate state agencies,
5-18 health authorities, regional directors, and public officers of
5-19 counties and municipalities as necessary to comply with this
5-20 chapter and related rules relating to the:
5-21 (A) identification, diagnosis, and treatment of
5-22 children with lead poisoning and their families;
5-23 (B) testing of appropriate public places,
5-24 residences, and child care facilities for lead contamination; and
5-25 (C) remediation of lead contamination in public
5-26 places, residences, and child care facilities;
5-27 (4) to appropriate federal agencies, such as the
6-1 Centers for Disease Control of the United States Public Health
6-2 Service, except that the information must be limited to the
6-3 information requested by the agency; or
6-4 (5) to medical personnel to the extent necessary in a
6-5 medical emergency to protect the health or life of the child
6-6 identified in the information.
6-7 (d) The director, a regional director or other department
6-8 employee, a health authority or employee of a public health
6-9 district, a health authority or employee of a county or municipal
6-10 health department, or a public official of a county or municipality
6-11 may not be examined in a civil, criminal, special, or other
6-12 proceeding as to the existence or contents of pertinent records of
6-13 or reports or information about a child identified, examined, or
6-14 treated for lead poisoning by the department, a public health
6-15 district, a local health department, or a health authority without
6-16 the consent of the child's parents, managing conservator, guardian,
6-17 or other person authorized by law to give consent.
6-18 Sec. 87.004. CONTRACTS; AGREEMENTS. The department may
6-19 enter into contracts or agreements as necessary to implement this
6-20 chapter. The contracts or agreements may provide for payment by
6-21 the state for materials, equipment, services, and space rental.
6-22 Sec. 87.005. FUNDS. Subject to any limitations or
6-23 conditions prescribed by the legislature, the board and the
6-24 department may seek, receive, and spend appropriations, fees,
6-25 grants, or donations to carry out the purposes of this chapter,
6-26 including:
6-27 (1) the prevention of childhood lead poisoning;
7-1 (2) the identification, investigation, or treatment of
7-2 cases or suspected cases of childhood lead poisoning; and
7-3 (3) the inspection of public places, residences, and
7-4 child care facilities suspected or known to be contaminated by lead
7-5 and to be the cause or suspected cause of childhood lead poisoning.
7-6 Sec. 87.006. LIMITATION ON LIABILITY. An individual
7-7 performing duties in compliance with orders or instructions of the
7-8 department or a health authority issued under this chapter is not
7-9 liable for the death of or injury to an individual or for damage to
7-10 property, except in a case of wilful misconduct or gross
7-11 negligence.
7-12 Sec. 87.007. COOPERATION OF GOVERNMENTAL ENTITIES. Any
7-13 governmental entity capable of assisting the department in carrying
7-14 out this chapter may cooperate with the department and furnish its
7-15 expertise, services, and facilities.
7-16 Sec. 87.008. PUBLIC EDUCATION. The department may institute
7-17 a public education effort to inform the public of the dangers,
7-18 frequency, and sources of lead contamination that lead to childhood
7-19 lead poisoning and of the methods of preventing childhood lead
7-20 poisoning. The education effort may target persons in areas of
7-21 significant exposure to sources of lead poisoning, including
7-22 parents, teachers, social workers, other human services personnel,
7-23 owners of residential property, and health care personnel.
7-24 Sec. 87.009. RESEARCH AND DEVELOPMENT; APPROVAL OF NEW
7-25 METHODS TO ABATE LEAD. (a) The department may investigate,
7-26 develop, field test, and approve new methods of removing, covering,
7-27 or otherwise abating paint, plaster, or other materials that
8-1 contain dangerous levels of lead to encourage and facilitate the
8-2 remediation of lead contamination in residences with greater
8-3 efficiency, safety, and economy.
8-4 (b) The department may consult with the appropriate state
8-5 and federal agencies before field testing or approving new methods
8-6 of lead abatement to ensure that the methods are consistent with
8-7 laws and regulations that address the occupational safety and
8-8 health of workers in lead abatement operations.
8-9 (c) The department may contract with persons to support
8-10 research and development of the new methods.
8-11 Sec. 87.010. DELEGATION. (a) The board by rule may
8-12 delegate a power or duty imposed on the director by this chapter to
8-13 a designee of the board, including the power or duty to order or to
8-14 render a final administrative decision.
8-15 (b) A health authority may, unless otherwise restricted by
8-16 law, delegate a power or duty imposed on the health authority to an
8-17 employee of the local health department, the local health unit, or
8-18 the public health district in which the health authority serves. A
8-19 power or duty imposed on the health authority that requires
8-20 independent medical judgment must be delegated in accordance with
8-21 Chapter 121 and only to a properly qualified physician while the
8-22 health authority is absent or incapacitated.
8-23 Sec. 87.011. RULES. (a) The board may adopt substantive
8-24 and procedural rules necessary to implement this chapter.
8-25 (b) Substantive rules adopted by the board shall impose
8-26 obligations, rights, and remedies for residence owners and
8-27 occupants that are substantively the same as any federal
9-1 regulations relating to lead contamination.
9-2 (Sections 87.012 to 87.020 reserved for expansion
9-3 SUBCHAPTER B. REPORTS OF CHILDHOOD LEAD POISONING
9-4 Sec. 87.021. REPORTABLE HEALTH CONDITIONS. (a) Early
9-5 childhood lead poisoning is a reportable health condition.
9-6 (b) The board by rule may designate:
9-7 (1) blood lead concentrations in children that must be
9-8 reported; and
9-9 (2) the ages of children for whom the reporting
9-10 requirements apply.
9-11 (c) The board may adopt rules that establish a registry of
9-12 children with lead poisoning.
9-13 Sec. 87.022. PERSONS REQUIRED TO REPORT. (a) A person
9-14 required to report early childhood lead poisoning shall report to
9-15 the department in the manner specified by board rule. Except as
9-16 provided by this section, a person required by this section to
9-17 report must make the report immediately after the person gains
9-18 knowledge of the case or suspected case of childhood lead
9-19 poisoning.
9-20 (b) A physician shall report a case or suspected case of
9-21 childhood lead poisoning after the physician's first examination of
9-22 a child for whom reporting is required by board rule.
9-23 (c) A person in charge of an independent clinical
9-24 laboratory, a hospital or clinic laboratory, or other facility in
9-25 which a laboratory examination of a specimen derived from the human
9-26 body yields evidence of childhood lead poisoning shall report the
9-27 findings to the department as required by board rule.
10-1 (d) If a report is not made as required by Subsection (b) or
10-2 (c), the following persons shall report a case or suspected case of
10-3 childhood lead poisoning and all information known concerning the
10-4 child:
10-5 (1) the administrator of a hospital licensed under
10-6 Chapter 241;
10-7 (2) a professional registered nurse;
10-8 (3) an administrator or director of a public or
10-9 private child care facility;
10-10 (4) an administrator of a home health agency;
10-11 (5) an administrator or health official of a public or
10-12 private institution of higher education;
10-13 (6) a superintendent, manager, or health official of a
10-14 public or private camp, home, or institution;
10-15 (7) a parent, managing conservator, guardian, or
10-16 residence owner; and
10-17 (8) a health professional.
10-18 Sec. 87.023. REPORTING PROCEDURES. (a) The board shall
10-19 prescribe the form and method of reporting under this chapter,
10-20 including a report in writing, by telephone, or by electronic data
10-21 transmission.
10-22 (b) Board rules may require the reports to contain any
10-23 information relating to a case that is necessary for the purposes
10-24 of this chapter, including:
10-25 (1) the child's name, address, age, sex, and race;
10-26 (2) the child's blood lead concentration;
10-27 (3) the procedure used to determine the child's blood
11-1 lead concentration; and
11-2 (4) the name of the attending physician.
11-3 (c) The director may authorize an alternate routing of
11-4 information in particular cases if the director determines that the
11-5 customary reporting procedure would cause the information to be
11-6 unduly delayed.
11-7 Sec. 87.024. REPORT OF HOSPITALIZATION OR DEATH. (a) A
11-8 physician who attends a child during the child's hospitalization
11-9 shall immediately notify the department if the physician knows or
11-10 suspects that the child has lead poisoning and the physician
11-11 believes the lead poisoning resulted from the child's exposure to a
11-12 dangerous level of environmental lead that may be a threat to the
11-13 public health.
11-14 (b) A physician who attends a child during the child's last
11-15 illness shall immediately notify the department if the physician:
11-16 (1) knows or suspects that the child died of lead
11-17 poisoning; and
11-18 (2) believes the lead poisoning resulted from the
11-19 child's exposure to a dangerous level of environmental lead that
11-20 may be a threat to the public health.
11-21 (c) An attending physician, health authority, or regional
11-22 director, with the consent of the child's survivors, may request an
11-23 autopsy if the physician, health authority, or regional director
11-24 needs further information concerning the cause of death in order to
11-25 protect the public health. The health authority or regional
11-26 director may order the autopsy to determine the cause of death if
11-27 the child's survivors do not consent to the autopsy. The autopsy
12-1 results shall be reported to the department.
12-2 (d) A justice of the peace acting as coroner or a medical
12-3 examiner in the course of an inquest under Chapter 49, Code of
12-4 Criminal Procedure, who finds that a child's cause of death was
12-5 lead poisoning that resulted from exposure to a dangerous level of
12-6 environmental lead that the justice of the peace or medical
12-7 examiner believes may be a threat to the public health shall
12-8 immediately notify the health authority or the regional medical
12-9 director in the jurisdiction in which the finding is made.
12-10 (Sections 87.025 to 87.040 reserved for expansion
12-11 SUBCHAPTER C. PILOT PROGRAM: SCREENING AND TREATMENT
12-12 FOR EARLY CHILDHOOD LEAD POISONING
12-13 Sec. 87.041. DETECTION AND TREATMENT PROGRAM. (a) Within
12-14 the limits of available funds, the department may establish and
12-15 administer in one or more public health regions or parts of one or
12-16 more regions a pilot program to combat morbidity and mortality in
12-17 children who have elevated blood concentrations of lead.
12-18 (b) If the program is established, the board shall adopt
12-19 rules necessary to administer the program. The rules may include:
12-20 (1) a classification of childhood blood lead
12-21 concentrations that are known to produce or suspected of producing
12-22 lead poisoning in children and periodicity schedule for blood lead
12-23 testing based on age; and
12-24 (2) a system of geographic priorities to focus the
12-25 initial screening efforts on areas that are known to have or
12-26 suspected of having residences contaminated by dangerous levels of
12-27 lead that are accessible to children of any age.
13-1 (c) The department shall conduct not more than one pilot
13-2 project for the detection of childhood lead poisoning in fiscal
13-3 year 1994 and in fiscal year 1995. The number of children tested
13-4 in each pilot project may not exceed 10,000. This subsection
13-5 expires August 31, 1995.
13-6 Sec. 87.042. TEST REQUIREMENT. (a) In the area of the
13-7 pilot program, each child of an age specified by board rule shall
13-8 be given at least one screening test for lead poisoning approved by
13-9 the board.
13-10 (b) The department may prescribe the screening test
13-11 procedures to be used and the standards of accuracy and precision
13-12 required for the test.
13-13 (c) The analysis of specimens necessary for the required
13-14 screening tests must be performed by the department's laboratory or
13-15 by a laboratory approved by the department under Section 87.044.
13-16 (d) A physician or other health professional who attends a
13-17 child of an age specified by board rule is responsible for assuring
13-18 that the child is given a screening test performed in accordance
13-19 with board rules.
13-20 Sec. 87.043. DIAGNOSIS; FOLLOW-UP. (a) If, because of an
13-21 analysis of a specimen submitted under Section 87.042, the
13-22 department reasonably suspects that a child may have lead
13-23 poisoning, the department shall notify the physician or other
13-24 health professional who submitted the specimen that the results
13-25 reveal elevated levels of lead and shall include the results of the
13-26 laboratory analysis. The department may notify one or more of the
13-27 following that the results of the analysis reveal elevated
14-1 concentrations of lead and recommend that further testing is
14-2 necessary:
14-3 (1) if the submitter of the specimen was not a
14-4 physician, the physician attending the child or the physician's
14-5 designee;
14-6 (2) the parent, managing conservator, or guardian, or
14-7 another person who under the laws of another state or a court order
14-8 has care and control of the child, including the authority to
14-9 consent to the medical care of the child;
14-10 (3) the health authority or, if appropriate, the
14-11 regional director of the jurisdiction in which the child lives; and
14-12 (4) a physician who is a cooperating pediatric
14-13 specialist for the program.
14-14 (b) The department, the health authority, and the consulting
14-15 pediatric specialist may follow up a test that reveals elevated
14-16 concentrations of lead with the attending physician, with a parent,
14-17 managing conservator, or guardian of the child, or with another
14-18 person who under the laws of another state or a court order has
14-19 care and control of the child, including the authority to consent
14-20 to the medical care of the child.
14-21 Sec. 87.044. APPROVAL OF LABORATORIES. (a) The department
14-22 may develop and administer a program to approve any laboratory that
14-23 wishes to perform the approved screening test for lead poisoning.
14-24 The board may adopt rules prescribing procedures and standards for
14-25 the conduct of the approval program.
14-26 (b) The board may prescribe the form and requirements of an
14-27 application for approval and the procedures for processing the
15-1 application.
15-2 (c) The board may prescribe the test procedure to be
15-3 employed by an approved laboratory and the standards of accuracy
15-4 and precision for the test procedure.
15-5 (d) The department may extend or renew any approval in
15-6 accordance with the procedures in board rules.
15-7 (e) The department may for cause, after notice to the
15-8 affected laboratory and an opportunity for an administrative
15-9 hearing, deny the application of a laboratory for failure to meet
15-10 the criteria for approval set out in board rules.
15-11 (f) The department may suspend, restrict, or revoke the
15-12 approval granted under this section.
15-13 (g) Hearings under this section shall be conducted in
15-14 accordance with the formal hearing rules adopted by the board and
15-15 with the contested case provisions of the Administrative Procedure
15-16 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
15-17 Statutes).
15-18 (Sections 87.045 to 87.060 reserved for expansion
15-19 SUBCHAPTER D. CHILDHOOD LEAD SCREENING
15-20 PROGRAM SERVICES
15-21 Sec. 87.061. COORDINATION OF PROGRAM SERVICES. (a) A child
15-22 who meets the medical criteria specified by board rule may be
15-23 referred to the department's case management program for guidance
15-24 in applying for assistance provided through the pilot program for
15-25 lead screening established by this chapter or provided through
15-26 other department programs, the medical assistance program (Title
15-27 XIX) administered by the Texas Department of Human Services, or
16-1 other public programs.
16-2 (b) A case manager in the department shall refer a child
16-3 whose family is eligible to the Texas Department of Human Services
16-4 medical assistance program. The family must apply for benefits
16-5 from the medical assistance program before receiving program
16-6 services provided under this chapter.
16-7 Sec. 87.062. PROGRAM SERVICES. (a) Within the limits of
16-8 funds available for this purpose and in cooperation with the
16-9 child's physician, the department may provide services directly or
16-10 through approved providers to a child who meets the eligibility
16-11 criteria specified by board rule on confirmation of a child's
16-12 positive screening test for lead poisoning.
16-13 (b) The board may adopt rules specifying the type, amount,
16-14 and duration of program services to be offered. The services may
16-15 include:
16-16 (1) one or more lead screening tests for an eligible
16-17 child and, if necessary or advisable, for other children living in
16-18 the same residence as the eligible child, attending the same child
16-19 care facility as the eligible child, or occupying for an extended
16-20 period the same public place in which the eligible child lives as
16-21 specified by board rule;
16-22 (2) a diagnostic test for lead poisoning for an
16-23 eligible child and other children in the same residence, child care
16-24 facility, or public place as the eligible child as specified by
16-25 this chapter and board rule; and
16-26 (3) environmental testing of residences, child care
16-27 facilities, and public places known to be associated with children
17-1 with lead poisoning.
17-2 (c) The board may adopt other rules, including rules:
17-3 (1) to establish the criteria for eligibility for
17-4 services, including medical and financial criteria;
17-5 (2) to establish procedures necessary to determine the
17-6 medical, financial, and other eligibility of a child or the child's
17-7 family;
17-8 (3) for applying for program services and for the
17-9 processing of applications;
17-10 (4) to provide services based on a sliding scale of
17-11 financial eligibility and to impose and collect fees for program
17-12 services;
17-13 (5) for the denial, modification, suspension, and
17-14 revocation of an individual's approval to receive services; and
17-15 (6) for approving providers to furnish program
17-16 services, with priority given to publicly supported health care
17-17 providers, including public health districts and local health
17-18 departments that have a history of providing public health services
17-19 under contract with the department in the region or regions
17-20 selected for the pilot project.
17-21 (d) The department may select providers according to the
17-22 criteria specified by board rule.
17-23 (e) The department may charge fees for the provision of
17-24 services and may require an approved provider to charge fees for
17-25 services provided under this chapter. The board by rule may:
17-26 (1) establish a range of fees that the department or
17-27 an approved provider may charge for services furnished under this
18-1 chapter;
18-2 (2) prescribe the disposition of fees collected by a
18-3 provider for services funded by the department; and
18-4 (3) require the department and a provider to provide
18-5 program services regardless of an otherwise eligible individual's
18-6 ability to pay all or part of the cost of the services.
18-7 Sec. 87.063. CONSENT. Except as otherwise provided by this
18-8 chapter, the department may not furnish program services or
18-9 authorize a provider to furnish program services without the
18-10 consent of an eligible child's parent, managing conservator, or
18-11 guardian or of another person who under the law of another state or
18-12 a court order may give consent for the child.
18-13 Sec. 87.064. DENIAL, MODIFICATION, SUSPENSION, AND
18-14 REVOCATION OF APPROVAL TO PROVIDE SERVICES. (a) After notice and
18-15 an opportunity for a fair hearing, the department may deny the
18-16 approval or modify, suspend, or revoke the approval of a person to
18-17 provide services under this subchapter.
18-18 (b) The department shall give notice and conduct the hearing
18-19 in accordance with the board's informal hearing rules.
18-20 (c) Sections 13 through 20, Administrative Procedure and
18-21 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
18-22 Statutes), do not apply to the notice and hearing required by this
18-23 section.
18-24 (d) This section does not apply to the revocation of
18-25 provider approval if the department restricts program services to
18-26 conform to budgetary limitations that require the board to
18-27 establish service priorities.
19-1 Sec. 87.065. FINANCIAL ELIGIBILITY FOR PROGRAM SERVICES;
19-2 OTHER BENEFITS. (a) An individual is not eligible to receive the
19-3 services authorized by this subchapter at no cost or at reduced
19-4 cost to the extent that the individual or the parent, managing
19-5 conservator, or other person with a legal obligation to support the
19-6 individual is eligible for some other benefit that would pay for
19-7 all or part of the services.
19-8 (b) The department may waive ineligibility under Subsection
19-9 (a) if the department finds that:
19-10 (1) good cause for the waiver is shown; and
19-11 (2) enforcement of the requirement would tend to
19-12 defeat the purpose of this chapter or disrupt the administration or
19-13 prevent the provision of services to an otherwise eligible
19-14 recipient.
19-15 (c) When an application for services is filed or at any time
19-16 that an individual is eligible for or receiving services, the
19-17 applicant or recipient shall inform the department of any other
19-18 benefit to which the applicant, recipient, or person with a legal
19-19 obligation to support the applicant or recipient may be entitled.
19-20 (d) The board by rule shall provide criteria for actions
19-21 taken under this section.
19-22 Sec. 87.066. DENIAL, MODIFICATION, SUSPENSION, AND
19-23 REVOCATION OF ELIGIBILITY TO RECEIVE SERVICES. (a) After notice
19-24 to the child's parent, managing conservator, guardian, or other
19-25 person who is legally obligated to support the child and an
19-26 opportunity for a fair hearing, the department may deny, modify,
19-27 suspend, or revoke the determination of a child's eligibility to
20-1 receive services at no cost or at reduced cost under this
20-2 subchapter.
20-3 (b) Notice shall be given and a hearing conducted in
20-4 accordance with the board's informal hearing rules.
20-5 (c) Sections 13 through 20, Administrative Procedure and
20-6 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
20-7 Statutes), do not apply to the notice and hearing required by this
20-8 section.
20-9 (d) This section does not apply to a revocation of
20-10 eligibility if the department restricts program services to conform
20-11 to budgetary limitations that require the board to establish
20-12 service priorities.
20-13 Sec. 87.067. REIMBURSEMENT. (a) The board may require a
20-14 child's parent, managing conservator, guardian, or other person who
20-15 is legally obligated to support the child to pay or reimburse the
20-16 department or an approved provider, as appropriate, for all or part
20-17 of the cost of the services provided.
20-18 (b) The recipient or parent, managing conservator, or other
20-19 person with a legal obligation to support a child who has received
20-20 services from the department that are covered by some other benefit
20-21 shall, when the other benefit is received, reimburse the department
20-22 for the cost of services provided.
20-23 Sec. 87.068. RECOVERY OF COSTS. (a) The department is
20-24 entitled to recover an expenditure for services provided under this
20-25 chapter from:
20-26 (1) a person who does not pay a fee for services
20-27 assessed by the department or an approved provider;
21-1 (2) a person who does not reimburse the department or
21-2 an approved provider as required by this subchapter; or
21-3 (3) a third party with a legal obligation to pay other
21-4 benefits who has notice of the department's or provider's interests
21-5 in the other benefits.
21-6 (b) This section creates a separate and distinct cause of
21-7 action, and the director may request the attorney general to bring
21-8 suit in the appropriate court of Travis County on behalf of the
21-9 department.
21-10 (c) In a judgment in favor of the department, the court may
21-11 award attorney fees, court costs, and interest accruing from the
21-12 date on which the department provides the service to the date on
21-13 which the department is reimbursed.
21-14 (d) The board by rule shall provide criteria for actions
21-15 taken under this section.
21-16 (Sections 87.069 to 87.080 reserved for expansion
21-17 SUBCHAPTER E. INSPECTIONS AND INVESTIGATIONS
21-18 Sec. 87.081. INVESTIGATIONS. (a) The department may
21-19 investigate the causes of childhood lead poisoning, the sources of
21-20 lead contamination, and methods to prevent poisoning and
21-21 environmental contamination.
21-22 (b) The department may require special investigations of
21-23 specified cases of childhood lead poisoning to evaluate the status
21-24 in this state of lead contamination in public buildings and private
21-25 residences. Each health authority shall provide information on
21-26 request according to the department's written instructions.
21-27 (c) The department may investigate the existence of
22-1 childhood lead poisoning in the state to determine the nature and
22-2 extent of the condition and to formulate and evaluate the control
22-3 measures used to protect the public health.
22-4 (d) A person shall provide records, including physician and
22-5 hospital patient records, or make those records available to
22-6 authorized agents for inspection and shall provide other
22-7 information to the department on request according to the
22-8 department's written instructions.
22-9 Sec. 87.082. WITNESSES; DOCUMENTS. (a) For the purpose of
22-10 an investigation under Section 87.081, the department may
22-11 administer oaths, summon witnesses, and compel the attendance of a
22-12 witness or the production of a document, including a physician or
22-13 hospital patient record. The department may request the assistance
22-14 of a county or district court to compel the attendance of a
22-15 summoned witness or the production of a requested document at a
22-16 hearing.
22-17 (b) A witness or deponent who is not a party and who is
22-18 subpoenaed or otherwise compelled to appear at a hearing or
22-19 proceeding under this section conducted outside the witness's or
22-20 deponent's county of residence is entitled to a travel and per diem
22-21 allowance in an amount set by board rule, but not to exceed the
22-22 travel and per diem allowance authorized for state employees
22-23 traveling in this state on official business.
22-24 Sec. 87.083. SAMPLES. (a) A person authorized to conduct
22-25 an investigation under this subchapter may take samples of
22-26 materials present on the premises, including air, water, soil,
22-27 paint, plaster, other building materials, and household goods.
23-1 (b) A person who takes a sample under this section shall
23-2 offer a corresponding sample to the person in control of the
23-3 premises for independent analysis.
23-4 (c) A person who takes a sample under this section may
23-5 reimburse or offer to reimburse the owner for the materials taken.
23-6 The reimbursement may not exceed the actual monetary loss to the
23-7 owner.
23-8 (d) The lead content of samples taken by inspectors and
23-9 investigators and the samples given to the person in control of the
23-10 premises must be determined as specified by board rule.
23-11 Sec. 87.084. INSPECTION. The director, the director's
23-12 designee, a health authority, or a health authority's designee may
23-13 enter at reasonable times and inspect within reasonable limits a
23-14 public place in the performance of that person's duty to prevent or
23-15 control childhood lead poisoning in this state by enforcing this
23-16 chapter or board rules adopted under this chapter.
23-17 Sec. 87.085. RIGHT OF ENTRY. For an investigation or
23-18 inspection, the director, the director's designee, a health
23-19 authority, or the health authority's designee has the right of
23-20 entry on land or in a building, vehicle, watercraft, or aircraft
23-21 and the right of access to an individual or object that is in
23-22 detention or restriction instituted under state or federal law by
23-23 the director or a health authority or instituted voluntarily on
23-24 instructions of a private physician.
23-25 Sec. 87.086. INSPECTIONS AND INVESTIGATIONS OF RESIDENCE.
23-26 (a) If the director or a health authority receives information
23-27 about a case of childhood lead poisoning reported under Subchapter
24-1 B, detected under Subchapter C, or identified by other means, the
24-2 director or health authority may order an inspection and
24-3 investigation of the residence in which the child lives or has
24-4 recently lived or the child care facility which the child attends
24-5 or has recently attended if the adult occupants of the residence
24-6 consent to the inspection and investigation.
24-7 (b) If the occupants of the residence do not consent, the
24-8 director, the director's designee, or a health authority may apply
24-9 to a magistrate of a court of competent jurisdiction for a health
24-10 officer's search warrant under Article 18.05, Code of Criminal
24-11 Procedure, to authorize the inspection or investigation of the
24-12 residence and its contents for the purpose of determining the
24-13 sources of lead contamination that gave rise to the case of
24-14 childhood lead poisoning.
24-15 (c) Inspectors must immediately report the results of the
24-16 inspection and investigation to the director and the health
24-17 authority.
24-18 Sec. 87.087. PROBABLE CAUSE. For purposes of Section
24-19 87.086, the showing of evidence of probable cause required to
24-20 obtain a health officer's warrant under Article 18.05(b), Code of
24-21 Criminal Procedure, may be met by showing that a child with a
24-22 confirmed case of lead poisoning lives or recently lived in the
24-23 residence or attends or recently attended the child care facility.
24-24 Sec. 87.088. LEAD CONTAMINATION; NOTICE. If the level of
24-25 lead contamination in a residence, child care facility, or public
24-26 place is sufficient to cause childhood lead poisoning, the director
24-27 or the health authority shall immediately inform the owner of the
25-1 building or structure, all affected tenants, all mortgagees and
25-2 lienholders of record, and the code enforcement officers of the
25-3 jurisdiction in which the residence, child care facility, or public
25-4 place is located.
25-5 Sec. 87.089. ADDITIONAL TESTING OF CHILDREN. (a) When a
25-6 level of lead contamination specified by board rule is found in a
25-7 residence, child care facility, or public place, the director, or
25-8 the health authority with the concurrence of the director, may
25-9 order the screening for lead poisoning of all children younger than
25-10 six years of age, and other children if the director considers it
25-11 advisable, who live or have recently lived in the residence, who
25-12 attend or have recently attended the child care facility, or who
25-13 routinely occupy or occupied the public place.
25-14 (b) The screening tests shall be conducted in the same
25-15 manner as the screening tests provided by Subchapter C. However,
25-16 if sufficient resources are available, the department or an
25-17 approved provider, in conjunction with the attending physicians,
25-18 may assist in the screening by providing direct screening services
25-19 to the affected children as a program service under Subchapter D.
25-20 (c) All cases or suspected cases of lead poisoning
25-21 identified under this section shall be reported to the child's
25-22 attending physician and the department.
25-23 Sec. 87.090. QUARANTINE. (a) In addition to the notices
25-24 required by Section 87.088, if the director, or a health authority
25-25 with the concurrence of the director, has reasonable cause to
25-26 believe that a residence, child care facility, or public place
25-27 routinely occupied by children who belong to a class for whom
26-1 reporting or screening is required by Subchapters B and C is or may
26-2 be contaminated with dangerous concentrations of lead, the
26-3 director, or the health authority with the concurrence of the
26-4 director, may place the residence, child care facility, or public
26-5 place in quarantine for the period necessary for a medical
26-6 examination or technical analysis of samples taken from the
26-7 property to determine if the property is contaminated. The
26-8 director or health authority may post a quarantine notice on the
26-9 residence, child care facility, or public place stating there are
26-10 possible dangerous levels of lead contamination.
26-11 (b) The department or health authority shall send notice of
26-12 the quarantine notice by registered or certified mail to the person
26-13 who owns or controls the residence, child care facility, or public
26-14 place.
26-15 (c) The department or health authority shall remove the
26-16 quarantine notice and return control of the residence, child care
26-17 facility, or public place to the person who owns or controls it if
26-18 the property is found not to be contaminated with a dangerous level
26-19 of lead. After a thorough inspection and investigation, if the
26-20 residence, child care facility, or public place is found to be
26-21 contaminated with a dangerous level of lead, the director, or a
26-22 health authority with the concurrence of the director, by written
26-23 order may require the owner of the property to impose lead
26-24 abatement measures to decontaminate the residence, child care
26-25 facility, or public place.
26-26 (d) The director or health authority shall order the removal
26-27 of the quarantine notice and return control of the property to the
27-1 owner if the lead abatement measures are completed and the work
27-2 product meets the standards set by board rule. If the lead
27-3 abatement measures are ineffective or if there is not a technically
27-4 feasible abatement measure available for use, the department or
27-5 health authority may continue the quarantine and order the person
27-6 who owns the residence, child care facility, or public place:
27-7 (1) if the property is suitable for use only by
27-8 children who are in a class specified by board rule, to destroy the
27-9 property, other than land, in a manner that decontaminates the
27-10 property to prevent the spread of contamination;
27-11 (2) if the property is land, to securely fence the
27-12 perimeter of the land or any part of the land that is contaminated
27-13 to prevent entry by children who are in a class specified by board
27-14 rule; or
27-15 (3) to securely seal off a contaminated structure or
27-16 other property on land to prevent entry into the contaminated area
27-17 by children in a class specified by board rule until the quarantine
27-18 is removed by the board or health authority.
27-19 (e) The director or health authority may petition the county
27-20 or district court of the county in which the property is located
27-21 for orders necessary to protect the public health if:
27-22 (1) a person fails or refuses to comply with the
27-23 orders of the director or health authority as required by this
27-24 section; and
27-25 (2) the director or health authority has reason to
27-26 believe that the property is or may be contaminated with lead to
27-27 the extent that it presents an immediate threat to the public
28-1 health.
28-2 (f) After the filing of a petition, the court may grant a
28-3 temporary restraining order or a mandatory or prohibitory temporary
28-4 or permanent injunction for the health and safety of the public.
28-5 (g) The person who owns the property shall pay all expenses
28-6 of implementing lead abatement measures, court costs, storage, and
28-7 other justifiable expenses. The court may require the person who
28-8 owns the property to execute a bond in an amount set by the court
28-9 to ensure the performance of any lead abatement measures,
28-10 restoration, or destruction ordered by the court. If the property
28-11 is an object, the bond may not exceed the value of the object in
28-12 its noncontaminated state. The bond shall be returned to the
28-13 person when the department or health authority informs the court
28-14 that the property is no longer contaminated or that the property
28-15 has been destroyed.
28-16 (h) If the court finds that the property is not
28-17 contaminated, it shall order the department or health authority to:
28-18 (1) remove the quarantine;
28-19 (2) if the property is an object, remove the
28-20 quarantine tags; and
28-21 (3) release the property to the person who owns or
28-22 controls it.
28-23 (i) The department or health authority, as appropriate,
28-24 shall charge the owner of the property for the cost of any
28-25 abatement measures performed by the department's or health
28-26 authority's employees. The department shall deposit the payments
28-27 received to the credit of the general revenue fund to be used for
29-1 the administration of this chapter. A health authority shall
29-2 distribute payments received to each county, municipality, or other
29-3 jurisdiction in an amount proportional to the jurisdiction's
29-4 contribution to the quarantine and control expense.
29-5 (j) In this section, "property" means:
29-6 (1) an object;
29-7 (2) a parcel of land; or
29-8 (3) a structure or other property on a parcel of land.
29-9 (Sections 87.091 to 87.100 reserved for expansion
29-10 SUBCHAPTER F. CONTROL MEASURES FOR RESIDENTIAL LEAD
29-11 CONTAMINANTS; EMERGENCY LEAD CONTAMINATION
29-12 AREAS
29-13 Sec. 87.101. DEFINITION. In this subchapter, "residence,"
29-14 as defined by Section 87.002, includes the soil surrounding the
29-15 residence and attached or adjacent garages, sheds, barns, and other
29-16 outbuildings.
29-17 Sec. 87.102. CHILDREN COVERED. This subchapter covers
29-18 children who are younger than six years of age.
29-19 Sec. 87.103. OWNER'S DUTY TO REMEDIATE LEAD-CONTAMINATED
29-20 RESIDENCE. (a) On the order of the director or a health
29-21 authority, the owner of a residence that the director finds to be
29-22 contaminated with dangerous levels of lead shall remove the lead to
29-23 make it inaccessible to children if:
29-24 (1) a child who is at significant risk of lead
29-25 poisoning or repoisoning occupies or may occupy the residence for
29-26 at least a period of time specified by board rule; or
29-27 (2) a child of any age who has demonstrated pica or
30-1 whose cognitive development is delayed or retarded resides in or
30-2 will reside in the residence.
30-3 (b) If a residence that is contaminated with dangerous
30-4 levels of lead undergoes a change of ownership and as a result of
30-5 the change of ownership a child will become a resident, the new
30-6 owner shall remove or cover the lead to make it inaccessible to
30-7 children as required by this section and board rules.
30-8 Sec. 87.104. LETTER OF COMPLIANCE. When the residence meets
30-9 the remediation standards specified by board rule, the owner may
30-10 obtain a letter of compliance from a lead inspector licensed by the
30-11 department or, if the department does not license those inspectors,
30-12 an inspector with the training and experience in residential lead
30-13 inspection specified by board rule.
30-14 Sec. 87.105. OCCUPANCY PROHIBITED. Except as specified by
30-15 board rule, a child may not occupy a residence or a residential
30-16 unit contaminated with dangerous levels of lead until remediation
30-17 is complete and an inspector has issued a letter of compliance to
30-18 the owner.
30-19 Sec. 87.106. APPLICATION OF SUBCHAPTER. Regardless of
30-20 whether a residence has been inspected under Subchapter E, the
30-21 provisions of this subchapter apply:
30-22 (1) to the owner of a residence if:
30-23 (A) a child lives in the residence; or
30-24 (B) a child occupies the residence for the
30-25 purpose of receiving child care; and
30-26 (2) to the owner of a residence when a residence
30-27 undergoes a change of ownership and as a result of that change of
31-1 ownership:
31-2 (A) a child will live in the residence; or
31-3 (B) a child will occupy the residence for the
31-4 purpose of receiving child care.
31-5 Sec. 87.107. NOTICE TO PROSPECTIVE PURCHASER OR TENANT OF
31-6 RESIDENCE. (a) An owner of a residence shall inform a prospective
31-7 purchaser or tenant of the residence about any notifications and
31-8 other information the owner has received from any governmental
31-9 representative or private testing laboratory about the presence of
31-10 dangerous levels of lead contamination in or around the residence.
31-11 (b) If an owner has information described by Subsection (a)
31-12 about the presence of dangerous levels of lead contamination in or
31-13 around the residence, the owner shall inform the prospective
31-14 purchaser or tenant of the residence of the availability of
31-15 inspections for lead contamination. After notice, if the
31-16 prospective purchaser or tenant chooses to have an inspection made,
31-17 the owner shall give the prospective purchaser or tenant at least
31-18 10 days to have an inspection performed. The cost of the
31-19 inspection is the responsibility of the prospective purchaser or
31-20 tenant.
31-21 (c) If the owner of the residence has given the prospective
31-22 purchaser or tenant the required notice of the existence of lead
31-23 contamination and the availability of inspections for lead
31-24 contamination, the owner must obtain the signature of the purchaser
31-25 or tenant, when or at any time before the sale is closed or the
31-26 lease or rental agreement is fully executed, on a document
31-27 acknowledging that the purchaser or tenant has been given notice of
32-1 the lead contamination in or around the residence and the
32-2 availability of inspections for lead contamination.
32-3 (d) An owner is liable for damages caused by the owner's
32-4 failure to give notice as required by this section.
32-5 (e) A real estate broker or real estate agent who represents
32-6 the owner in the sale, lease, or rental of the residence may act as
32-7 agent for the owner to fulfill the requirements of this section.
32-8 (f) If the owner has failed to inform the broker or agent of
32-9 the lead contamination or has concealed the contamination, the
32-10 broker or agent is not liable for failure to give notice of lead
32-11 contamination unless a reasonable, prudent broker or agent, in the
32-12 use of ordinary care under the same or similar circumstances, would
32-13 have known or should have known about the lead contamination.
32-14 (g) The board shall adopt rules necessary to carry out this
32-15 section.
32-16 Sec. 87.108. EMERGENCY LEAD POISONING AREAS. (a) On the
32-17 basis of high rates of childhood lead poisoning, the director or
32-18 one or more health authorities may designate emergency lead
32-19 poisoning areas.
32-20 (b) A health authority may designate an emergency lead
32-21 poisoning area only:
32-22 (1) within the geographic boundaries under the health
32-23 authority's jurisdiction; and
32-24 (2) after the health authority, with the concurrence
32-25 of the director, provides notice to and consults the governing body
32-26 of each county and municipality with jurisdiction over the
32-27 territory in the affected area.
33-1 (c) After consulting with other appropriate state and
33-2 federal agencies, the board may adopt rules specifying criteria and
33-3 priorities for the designation of emergency lead poisoning areas.
33-4 (d) In an emergency lead poisoning area, the director or one
33-5 or more health authorities with the concurrence of the director may
33-6 order the inspection and investigation of the exteriors of certain
33-7 buildings, the interiors of certain residences and schools, and all
33-8 soil on residential premises and in parks, vacant lots, school
33-9 grounds, and playgrounds.
33-10 (e) In a designated emergency lead poisoning area, in
33-11 addition to covering, removal, and other abatement activities
33-12 required by Section 87.103, paint, plaster, soil, and other
33-13 accessible materials contaminated with dangerous levels of lead and
33-14 located in residential premises must be removed, adequately
33-15 covered, or otherwise made inaccessible to children as specified by
33-16 board rule.
33-17 (f) Before beginning the removal, covering, or other
33-18 abatement of paint, plaster, soil, or other material, the owner or
33-19 a lead abatement worker must notify the department, the occupants
33-20 of the residence, the health authority of the jurisdiction in which
33-21 the residence is located, and any other persons specified by board
33-22 rules. The rules must also specify the form of and information
33-23 required in the notice.
33-24 (g) The lead abatement procedures shall be carried out in
33-25 accordance with board rules to ensure the safety of the occupants.
33-26 Sec. 87.109. INJUNCTION; CIVIL PENALTY. (a) If it appears
33-27 that a person has violated or is violating Section 87.103 or 87.107
34-1 or a rule adopted by the board to implement those sections, the
34-2 attorney general or a municipal, county, or district attorney, as
34-3 appropriate, at the request of the director or of a health
34-4 authority in whose jurisdiction the violation has occurred or is
34-5 occurring, may bring a civil suit for:
34-6 (1) injunctive relief to restrain the person from
34-7 continuing the violation or threat of violation;
34-8 (2) the assessment and recovery of a civil penalty for
34-9 a violation or continuing violation; or
34-10 (3) both injunctive relief and a civil penalty.
34-11 (b) The district court may grant injunctive relief, a civil
34-12 penalty, or both, as warranted by the facts. The injunctive relief
34-13 may include any prohibitory or mandatory injunction warranted by
34-14 the facts, including a temporary restraining order, temporary
34-15 injunction, or permanent injunction.
34-16 (c) The penalty may not exceed $1,000 a day for each
34-17 violation. Each day of a continuing violation is a separate
34-18 violation for the purpose of penalty assessment.
34-19 (d) In determining the amount of the penalty, the court
34-20 shall consider:
34-21 (1) the person's previous history of violations;
34-22 (2) the seriousness of the violation;
34-23 (3) any threat to the health, safety, or rights of the
34-24 public posed by the violations;
34-25 (4) the demonstrated good faith of the person charged;
34-26 and
34-27 (5) any other matters that justice may require.
35-1 (e) The department is an indispensable party in a suit
35-2 brought by a district, county, or municipal attorney under this
35-3 chapter.
35-4 (f) Venue for a suit brought under this section is in the
35-5 county in which the violation occurred, the county in which the
35-6 defendant resides, or Travis County.
35-7 (g) A civil penalty recovered in a suit brought by the
35-8 attorney general under this chapter shall be deposited in the state
35-9 treasury to the credit of the general revenue fund. A civil
35-10 penalty recovered in a suit brought by a district, county, or
35-11 municipal attorney under this chapter shall be divided equally
35-12 between the state and the county or municipality that first brought
35-13 the suit.
35-14 (h) The director, the attorney general, or a district,
35-15 county, or municipal attorney may each recover reasonable expenses
35-16 incurred in obtaining injunctive relief or civil penalties under
35-17 this section, including investigative costs, court costs,
35-18 reasonable attorney fees, witness fees, and deposition expenses.
35-19 The expenses recovered by the director are for the administration
35-20 and enforcement of this chapter.
35-21 SECTION 2. This Act takes effect September 1, 1993, except
35-22 that Subchapters C, D, and F, Chapter 87, Health and Safety Code,
35-23 as added by this Act, take effect January 1, 1994.
35-24 SECTION 3. The importance of this legislation and the
35-25 crowded condition of the calendars in both houses create an
35-26 emergency and an imperative public necessity that the
35-27 constitutional rule requiring bills to be read on three several
36-1 days in each house be suspended, and this rule is hereby suspended.