By: Truan S.B. No. 91
73R1248 KLL-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the identification of children suffering from lead
1-3 poisoning and to control measures for lead contamination; providing
1-4 civil penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle D, Title 2, Health and Safety Code, is
1-7 amended by adding Chapter 87 to read as follows:
1-8 CHAPTER 87. CHILDHOOD LEAD POISONING PREVENTION
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 87.001. SHORT TITLE. This chapter may be cited as the
1-11 Childhood Lead Poisoning Prevention Act.
1-12 Sec. 87.002. DEFINITIONS. In this chapter:
1-13 (1) "Authorized agent" means an employee of the
1-14 department appointed by the director to enforce this chapter.
1-15 (2) "Child care" includes a school, preschool,
1-16 kindergarten, nursery school, or other similar activity that
1-17 provides care or instruction for young children.
1-18 (3) "Child care facility" means a public place or a
1-19 residence in which a person furnishes child care.
1-20 (4) "Director" means the director of the Department of
1-21 Public Health.
1-22 (5) "Health authority" means a physician appointed as
1-23 such under Chapter 121.
1-24 (6) "Health professional" means an individual whose:
2-1 (A) vocation or profession is directly or
2-2 indirectly related to the maintenance of health in another
2-3 individual; and
2-4 (B) duties require a specified amount of formal
2-5 education and may require a special examination, certificate or
2-6 license, or membership in a regional or national association.
2-7 (7) "Lead" includes metallic lead and lead-containing
2-8 materials.
2-9 (8) "Lead poisoning" means the presence of blood lead
2-10 concentrations known to be associated with mental and physical
2-11 disorders due to absorption, ingestion, or inhalation of lead as
2-12 specified in the most recent criteria issued by the United States
2-13 Department of Health and Human Services, Public Health Service,
2-14 Centers for Disease Control, or other national public health
2-15 organization 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;
2-26 (iii) Title XIX of the Social Security
2-27 Act;
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) a public program created by federal or state
3-7 law, or by ordinance or rule of a municipality or political
3-8 subdivision of the state, excluding benefits created by the
3-9 establishment of a municipal or county hospital, a joint
3-10 municipal-county hospital, a county hospital authority, a hospital
3-11 district, or the facilities of a publicly supported medical school;
3-12 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,
3-22 trustee, or guardian of the estate of the owner. The term does not
3-23 include a bank, lending institution, mortgage company, or mortgagee
3-24 unless the mortgagee takes actual physical possession under
3-25 applicable 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, building or other structure, or conveyance that is not used
4-14 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 public places, residences,
5-26 and child care facilities with lead contamination;
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 residences with greater efficiency, safety, and
8-3 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 (Sections 87.011-87.020 reserved for expansion
8-24 SUBCHAPTER B. REPORTS OF CHILDHOOD LEAD POISONING
8-25 Sec. 87.021. REPORTABLE HEALTH CONDITIONS. (a) Early
8-26 childhood lead poisoning is a reportable health condition.
8-27 (b) The board by rule may designate:
9-1 (1) blood lead concentrations in children that must be
9-2 reported; and
9-3 (2) the ages of children for whom the reporting
9-4 requirements apply.
9-5 (c) The board may adopt rules that establish a registry of
9-6 children with lead poisoning.
9-7 Sec. 87.022. PERSONS REQUIRED TO REPORT. (a) A person
9-8 required to report early childhood lead poisoning shall report to
9-9 the department in the manner specified by board rule. Except as
9-10 provided by this section, a person required by this section to
9-11 report must make the report immediately after the person gains
9-12 knowledge of the case or suspected case of childhood lead
9-13 poisoning.
9-14 (b) A physician shall report a case or suspected case of
9-15 childhood lead poisoning after the physician's first examination of
9-16 a child for whom reporting is required by board rule.
9-17 (c) A person in charge of an independent clinical
9-18 laboratory, a hospital or clinic laboratory, or other facility in
9-19 which a laboratory examination of a specimen derived from the human
9-20 body yields evidence of childhood lead poisoning shall report the
9-21 findings to the department as required by board rule.
9-22 (d) If a report is not made as required by Subsection (b) or
9-23 (c), the following persons shall report a case or suspected case of
9-24 childhood lead poisoning and all information known concerning the
9-25 child:
9-26 (1) the administrator of a hospital licensed under
9-27 Chapter 241;
10-1 (2) a professional registered nurse;
10-2 (3) an administrator or director of a public or
10-3 private child care facility;
10-4 (4) an administrator of a home health agency;
10-5 (5) an administrator or health official of a public or
10-6 private institution of higher education;
10-7 (6) a superintendent, manager, or health official of a
10-8 public or private camp, home, or institution;
10-9 (7) a parent, managing conservator, guardian, or
10-10 residence owner; and
10-11 (8) a health professional.
10-12 Sec. 87.023. REPORTING PROCEDURES. (a) The board shall
10-13 prescribe the form and method of reporting under this chapter,
10-14 including a report in writing, by telephone, or by electronic data
10-15 transmission.
10-16 (b) Board rules may require the reports to contain any
10-17 information relating to a case that is necessary for the purposes
10-18 of this chapter, including:
10-19 (1) the child's name, address, age, sex, and race;
10-20 (2) the child's blood lead concentration;
10-21 (3) the procedure used to determine the child's blood
10-22 lead concentration; and
10-23 (4) the name of the attending physician.
10-24 (c) The director may authorize an alternate routing of
10-25 information in particular cases if the director determines that the
10-26 customary reporting procedure would cause the information to be
10-27 unduly delayed.
11-1 Sec. 87.024. REPORTS OF HOSPITALIZATION; DEATH. (a) A
11-2 physician who attends a child during the child's hospitalization
11-3 shall immediately notify the department if the physician knows or
11-4 suspects that the child has lead poisoning and the physician
11-5 believes the lead poisoning resulted from the child's exposure to a
11-6 dangerous level of environmental lead that may be a threat to the
11-7 public health.
11-8 (b) A physician who attends a child during the child's last
11-9 illness shall immediately notify the department if the physician:
11-10 (1) knows or suspects that the child died of lead
11-11 poisoning; and
11-12 (2) believes the lead poisoning resulted from the
11-13 child's exposure to a dangerous level of environmental lead that
11-14 may be a threat to the public health.
11-15 (c) An attending physician, health authority, or regional
11-16 director, with the consent of the child's survivors, may request an
11-17 autopsy if the physician, health authority, or regional director
11-18 needs further information concerning the cause of death in order to
11-19 protect the public health. The health authority or regional
11-20 director may order the autopsy to determine the cause of death if
11-21 the child's survivors do not consent to the autopsy. The autopsy
11-22 results shall be reported to the department.
11-23 (d) A justice of the peace acting as coroner or a medical
11-24 examiner in the course of an inquest under Chapter 49, Code of
11-25 Criminal Procedure, who finds that a child's cause of death was
11-26 lead poisoning that resulted from exposure to a dangerous level of
11-27 environmental lead that the justice of the peace or medical
12-1 examiner believes may be a threat to the public health shall
12-2 immediately notify the health authority or the regional medical
12-3 director in the jurisdiction in which the finding is made.
12-4 (Sections 87.025-87.040 reserved for expansion
12-5 SUBCHAPTER C. PILOT PROGRAM: SCREENING AND TREATMENT
12-6 FOR EARLY CHILDHOOD LEAD POISONING
12-7 Sec. 87.041. DETECTION AND TREATMENT PROGRAM. (a) Within
12-8 the limits of available funds, the department may establish and
12-9 administer in one or more public health regions, or parts of one or
12-10 more regions, a pilot program to combat morbidity and mortality in
12-11 children who have elevated blood concentrations of lead.
12-12 (b) If the program is established, the board shall adopt
12-13 rules necessary to administer the program. The rules may include:
12-14 (1) a classification of childhood blood lead
12-15 concentrations that are known or suspected of producing lead
12-16 poisoning in children and set a periodicity schedule for blood lead
12-17 testing based on age; and
12-18 (2) a system of geographic priorities to focus the
12-19 initial screening efforts on areas that are known to have or
12-20 suspected of having residences contaminated by dangerous levels of
12-21 lead that are accessible to children of any age.
12-22 Sec. 87.042. TEST REQUIREMENT. (a) In the area of the
12-23 pilot program, each child of an age specified by board rule shall
12-24 be given at least one screening test for lead poisoning approved by
12-25 the board.
12-26 (b) The department may prescribe the screening test
12-27 procedures to be used and the standards of accuracy and precision
13-1 required for the test.
13-2 (c) The analysis of specimens necessary for the required
13-3 screening tests must be performed by the department's laboratory or
13-4 by a laboratory approved by the department under Section 87.044.
13-5 (d) A physician or other health professional who attends a
13-6 child of an age specified by board rule is responsible for assuring
13-7 that the child is given a screening test performed in accordance
13-8 with board rules.
13-9 Sec. 87.043. DIAGNOSIS; FOLLOW-UP. (a) If, because of an
13-10 analysis of a specimen submitted under Section 87.042, the
13-11 department reasonably suspects that a child may have lead
13-12 poisoning, the department shall notify the physician or other
13-13 health professional who submitted the specimen that the results
13-14 reveal elevated levels of lead and shall include the results of the
13-15 laboratory analysis. The department may notify one or more of the
13-16 following that the results of the analysis reveal elevated
13-17 concentrations of lead and recommend that further testing is
13-18 necessary:
13-19 (1) if the submitter of the specimen was not a
13-20 physician, the physician attending the child or the physician's
13-21 designee;
13-22 (2) the parent, managing conservator, or guardian, or
13-23 another person who under the laws of another state or a court order
13-24 has care and control of the child, including the authority to
13-25 consent for the medical care of the child;
13-26 (3) the health authority or, if appropriate, the
13-27 regional director of the jurisdiction in which the child lives; and
14-1 (4) a physician who is a cooperating pediatric
14-2 specialist for the program.
14-3 (b) The department, the health authority, and the consulting
14-4 pediatric specialist may follow up a test that reveals elevated
14-5 concentrations of lead with the attending physician, with a parent,
14-6 managing conservator, or guardian of the child, or with another
14-7 person who under the laws of another state or a court order has
14-8 care and control of the child, including the authority to consent
14-9 for the medical care of the child.
14-10 Sec. 87.044. APPROVAL OF LABORATORIES. (a) The department
14-11 may develop and administer a program to approve any laboratory that
14-12 wishes to perform the approved screening test for lead poisoning.
14-13 The board may adopt rules prescribing procedures and standards for
14-14 the conduct of the approval program.
14-15 (b) The board may prescribe the form and requirements of an
14-16 application for approval and the procedures for processing the
14-17 application.
14-18 (c) The board may prescribe the test procedure to be
14-19 employed by an approved laboratory and the standards of accuracy
14-20 and precision for the test procedure.
14-21 (d) The department may extend or renew any approval in
14-22 accordance with the procedures in board rules.
14-23 (e) The department may for cause, after notice to the
14-24 affected laboratory and an opportunity for an administrative
14-25 hearing, deny the application of a laboratory for failure to meet
14-26 the criteria for approval set out in board rules.
14-27 (f) The department may suspend, restrict, or revoke the
15-1 approval granted under this section.
15-2 (g) Hearings under this section shall be conducted in
15-3 accordance with the formal hearing rules adopted by the board and
15-4 with the contested case provisions of the Administrative Procedure
15-5 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
15-6 Statutes).
15-7 (Sections 87.045-87.060 reserved for expansion
15-8 SUBCHAPTER D. CHILDHOOD LEAD SCREENING
15-9 PROGRAM SERVICES
15-10 Sec. 87.061. COORDINATION OF PROGRAM SERVICES. (a) A child
15-11 who meets the medical criteria specified by board rule may be
15-12 referred to the department's case management program for guidance
15-13 in applying for assistance provided through the pilot program for
15-14 lead screening established by this chapter or provided through
15-15 other department programs, the medical assistance program (Title
15-16 XIX) administered by the Texas Department of Human Services, or
15-17 other public programs.
15-18 (b) A case manager in the department shall refer a child
15-19 whose family is eligible to the Texas Department of Human Services
15-20 medical assistance program. The family must apply for benefits
15-21 from the medical assistance program before receiving program
15-22 services provided under this chapter.
15-23 Sec. 87.062. PROGRAM SERVICES. (a) Within the limits of
15-24 funds available for this purpose and in cooperation with the
15-25 child's physician, the department may provide services directly or
15-26 through approved providers to a child who meets the eligibility
15-27 criteria specified by board rule on confirmation of a child's
16-1 positive screening test for lead poisoning.
16-2 (b) The board may adopt rules specifying the type, amount,
16-3 and duration of program services to be offered. The services may
16-4 include:
16-5 (1) one or more lead screening tests for an eligible
16-6 child and, if necessary or advisable, for other children living in
16-7 the same residence as the eligible child, attending the same child
16-8 care facility as the eligible child, or occupying for an extended
16-9 period the same public place in which the eligible child lives as
16-10 specified by board rule;
16-11 (2) a diagnostic test for lead poisoning for an
16-12 eligible child and other children in the same residence, child care
16-13 facility, or public place as the eligible child as specified by
16-14 this chapter and board rule; and
16-15 (3) environmental testing of residences, child care
16-16 facilities, and public places known to be associated with children
16-17 with lead poisoning.
16-18 (c) The board may adopt other rules, including rules:
16-19 (1) to establish the criteria for eligibility for
16-20 services, including the medical and financial criteria;
16-21 (2) to establish procedures necessary to determine the
16-22 medical, financial, and other eligibility of a child or the child's
16-23 family;
16-24 (3) for application for program services and the
16-25 processing of applications;
16-26 (4) to provide services based on a sliding scale of
16-27 financial eligibility and the imposition and collection of fees for
17-1 program services;
17-2 (5) for the denial, modification, suspension, and
17-3 revocation of an individual's approval to receive services; and
17-4 (6) for the approval of providers to furnish program
17-5 services, with priority given to publicly supported health care
17-6 providers, including public health districts and local health
17-7 departments that have a history of providing public health services
17-8 under contract with the department in the region or regions
17-9 selected for the pilot project.
17-10 (d) The department may select providers according to the
17-11 criteria specified by board rule.
17-12 (e) The department may charge fees for the provision of
17-13 services and may require an approved provider to charge fees for
17-14 services provided under this chapter. The board by rule may:
17-15 (1) establish a range of fees that the department or
17-16 an approved provider may charge for services furnished under this
17-17 chapter;
17-18 (2) prescribe the disposition of fees collected by a
17-19 provider for services funded by the department; and
17-20 (3) require the department and a provider to provide
17-21 program services regardless of an otherwise eligible individual's
17-22 ability to pay all or part of the cost of the services.
17-23 Sec. 87.063. CONSENT. Except as otherwise provided by this
17-24 chapter, the department may not furnish program services or
17-25 authorize a provider to furnish program services without the
17-26 consent of an eligible child's parent, managing conservator, or
17-27 guardian, or another person who under the law of another state or a
18-1 court order may give consent for the child.
18-2 Sec. 87.064. DENIAL, MODIFICATION, SUSPENSION, AND
18-3 REVOCATION OF APPROVAL TO PROVIDE SERVICES. (a) After notice and
18-4 an opportunity for a fair hearing, the department may deny the
18-5 approval or modify, suspend, or revoke the approval of a person to
18-6 provide services under this subchapter.
18-7 (b) The department shall give notice and conduct the hearing
18-8 in accordance with the board's informal hearing rules.
18-9 (c) Sections 13 through 20, Administrative Procedure and
18-10 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
18-11 Statutes), do not apply to the notice and hearing required by this
18-12 section.
18-13 (d) This section does not apply to the revocation of
18-14 provider approval if the department restricts program services to
18-15 conform to budgetary limitations that require the board to
18-16 establish service priorities.
18-17 Sec. 87.065. FINANCIAL ELIGIBILITY FOR PROGRAM SERVICES;
18-18 OTHER BENEFITS. (a) An individual is not eligible to receive the
18-19 services authorized by this subchapter at no cost or reduced cost
18-20 to the extent that the individual or the parent, managing
18-21 conservator, or other person with a legal obligation to support the
18-22 individual is eligible for some other benefit that would pay for
18-23 all or part of the services.
18-24 (b) The department may waive ineligibility under Subsection
18-25 (a) if the department finds that:
18-26 (1) good cause for the waiver is shown; and
18-27 (2) enforcement of the requirement would tend to
19-1 defeat the purpose of this chapter or disrupt the administration or
19-2 prevent the provision of services to an otherwise eligible
19-3 recipient.
19-4 (c) When an application for services is filed or at any time
19-5 that an individual is eligible for or receiving services, the
19-6 applicant or recipient shall inform the department of any other
19-7 benefit to which the applicant, recipient, or person with a legal
19-8 obligation to support the applicant or recipient may be entitled.
19-9 (d) The board by rule shall provide criteria for actions
19-10 taken under this section.
19-11 Sec. 87.066. DENIAL, MODIFICATION, SUSPENSION, AND
19-12 REVOCATION OF ELIGIBILITY TO RECEIVE SERVICES. (a) After notice
19-13 to the child's parent, managing conservator, guardian, or other
19-14 person who is legally obligated to support the child and an
19-15 opportunity for a fair hearing, the department may deny, modify,
19-16 suspend, or revoke the determination of a child's eligibility to
19-17 receive services at no cost or at reduced cost under this
19-18 subchapter.
19-19 (b) Notice shall be given and a hearing conducted in
19-20 accordance with the board's informal hearing rules.
19-21 (c) Sections 13 through 20, Administrative Procedure and
19-22 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
19-23 Statutes), do not apply to the notice and hearing required by this
19-24 section.
19-25 (d) This section does not apply to a revocation of
19-26 eligibility if the department restricts program services to conform
19-27 to budgetary limitations that require the board to establish
20-1 service priorities.
20-2 Sec. 87.067. REIMBURSEMENT. (a) The board may require a
20-3 child's parent, managing conservator, guardian, or other person who
20-4 is legally obligated to support the child to pay or reimburse the
20-5 department or an approved provider, as appropriate, for all or part
20-6 of the cost of the services provided.
20-7 (b) The recipient or parent, managing conservator, or other
20-8 person with a legal obligation to support a child who has received
20-9 the services from the department that are covered by some other
20-10 benefit shall, when the other benefit is received, reimburse the
20-11 department for the cost of services provided.
20-12 Sec. 87.068. RECOVERY OF COSTS. (a) The department is
20-13 entitled to recover an expenditure for services provided under this
20-14 chapter from:
20-15 (1) a person who does not pay a fee for services
20-16 assessed by the department or an approved provider;
20-17 (2) a person who does not reimburse the department or
20-18 an approved provider as required by this subchapter; or
20-19 (3) a third party with a legal obligation to pay other
20-20 benefits and who has notice of the department's or provider's
20-21 interests in the other benefits.
20-22 (b) This section creates a separate and distinct cause of
20-23 action, and the director may request the attorney general to bring
20-24 suit in the appropriate court of Travis County on behalf of the
20-25 department.
20-26 (c) In a judgment in favor of the department, the court may
20-27 award attorney's fees, court costs, and interest accruing from the
21-1 date on which the department provides the service to the date on
21-2 which the department is reimbursed.
21-3 (d) The board by rule shall provide criteria for actions
21-4 taken under this section.
21-5 (Sections 87.069-87.080 reserved for expansion
21-6 SUBCHAPTER E. INSPECTIONS AND INVESTIGATIONS
21-7 Sec. 87.081. INVESTIGATIONS. (a) The department may
21-8 investigate the causes of childhood lead poisoning, the sources of
21-9 lead contamination, and methods to prevent poisoning and
21-10 environmental contamination.
21-11 (b) The department may require special investigations of
21-12 specified cases of childhood lead poisoning to evaluate the status
21-13 in this state of lead contamination in public buildings and private
21-14 residences. Each health authority shall provide information on
21-15 request according to the department's written instructions.
21-16 (c) The department may investigate the existence of
21-17 childhood lead poisoning in the state to determine the nature and
21-18 extent of the condition and to formulate and evaluate the control
21-19 measures used to protect the public health.
21-20 (d) A person shall provide records, including physician and
21-21 hospital patient records, or make those records available to
21-22 authorized agents for inspection and shall provide other
21-23 information to the department on request according to the
21-24 department's written instructions.
21-25 Sec. 87.082. WITNESSES; DOCUMENTS. (a) For the purpose of
21-26 an investigation under Section 87.081, the department may
21-27 administer oaths, summon witnesses, and compel the attendance of a
22-1 witness or the production of a document, including a physician or
22-2 hospital patient record. The department may request the assistance
22-3 of a county or district court to compel the attendance of a
22-4 summoned witness or the production of a requested document at a
22-5 hearing.
22-6 (b) A witness or deponent who is not a party and who is
22-7 subpoenaed or otherwise compelled to appear at a hearing or
22-8 proceeding under this section conducted outside the witness's or
22-9 deponent's county of residence is entitled to a travel and per diem
22-10 allowance in an amount set by board rule, but not to exceed the
22-11 travel and per diem allowance authorized for state employees
22-12 traveling in this state on official business.
22-13 Sec. 87.083. SAMPLES. (a) A person authorized to conduct
22-14 an investigation under this subchapter may take samples of
22-15 materials present on the premises, including air, water, soil,
22-16 paint, plaster, other building materials and household goods.
22-17 (b) A person who takes a sample under this section shall
22-18 offer a corresponding sample to the person in control of the
22-19 premises for independent analysis.
22-20 (c) A person who takes a sample under this section may
22-21 reimburse or offer to reimburse the owner for the materials taken.
22-22 The reimbursement may not exceed the actual monetary loss to the
22-23 owner.
22-24 (d) Lead content of samples taken by inspectors and
22-25 investigators, and the samples given to the person in control of
22-26 the premises, must be determined as specified by board rule.
22-27 Sec. 87.084. INSPECTION. The director, the director's
23-1 designee, a health authority, or a health authority's designee may
23-2 enter at reasonable times and inspect within reasonable limits a
23-3 public place in the performance of that person's duty to prevent or
23-4 control childhood lead poisoning in this state by enforcing this
23-5 chapter or board rules adopted under this chapter.
23-6 Sec. 87.085. RIGHT OF ENTRY. For an investigation or
23-7 inspection, the director, the director's designee, a health
23-8 authority, or the health authority's designee has the right of
23-9 entry on land or in a building, vehicle, watercraft, or aircraft
23-10 and the right of access to an individual or object that is in
23-11 detention or restriction instituted under state or federal law by
23-12 the director or a health authority or instituted voluntarily on
23-13 instructions of a private physician.
23-14 Sec. 87.086. INSPECTIONS AND INVESTIGATIONS OF RESIDENCE.
23-15 (a) If the director or a health authority receives information
23-16 about a case of childhood lead poisoning reported under Subchapter
23-17 B, detected under Subchapter C, or identified by other means, the
23-18 director or health authority may order an inspection and
23-19 investigation of the residence in which the child lives or has
23-20 recently lived or the child care facility which the child attends
23-21 or has recently attended if the adult occupants of the residence
23-22 consent to the inspection and investigation.
23-23 (b) If the occupants of the residence do not consent, the
23-24 director, the director's designee, or a health authority may apply
23-25 to a magistrate of a court of competent jurisdiction for a health
23-26 officer's search warrant under Article 18.05, Code of Criminal
23-27 Procedure, to authorize the inspection or investigation of the
24-1 residence and its contents for the purpose of determining the
24-2 sources of lead contamination that gave rise to the case of
24-3 childhood lead poisoning.
24-4 (c) Inspectors must immediately report the results of the
24-5 inspection and investigation to the director and health authority.
24-6 Sec. 87.087. PROBABLE CAUSE. For purposes of Section
24-7 87.086, the showing of evidence of probable cause required to
24-8 obtain a health officer's warrant under Article 18.05(b), Code of
24-9 Criminal Procedure, may be met by showing that a child with a
24-10 confirmed case of lead poisoning lives or recently lived in the
24-11 residence or attends or recently attended the child care facility.
24-12 Sec. 87.088. LEAD CONTAMINATION; NOTICE. If the level of
24-13 lead contamination in a residence, child care facility, or public
24-14 place is sufficient to cause childhood lead poisoning, the director
24-15 or the health authority shall immediately inform the owner of the
24-16 building or structure, all affected tenants, all mortgagees and
24-17 lienholders of record, and the code enforcement officers of the
24-18 jurisdiction in which the residence, child care facility, or public
24-19 place is located.
24-20 Sec. 87.089. ADDITIONAL TESTING OF CHILDREN. (a) When a
24-21 level of lead contamination specified by board rule is found in a
24-22 residence, child care facility, or public place, the director, or
24-23 the health authority with the concurrence of the director, may
24-24 order the screening for lead poisoning of all children younger than
24-25 six years of age, and other children if the director considers it
24-26 advisable, who live or have recently lived in the residence, who
24-27 attend or have recently attended the child care facility, or who
25-1 routinely occupy or occupied the public place.
25-2 (b) The screening tests shall be conducted in the same
25-3 manner as the screening tests provided by Subchapter C. However,
25-4 if sufficient resources are available, the department or an
25-5 approved provider, in conjunction with the attending physicians,
25-6 may assist in the screening by providing direct screening services
25-7 to the affected children as a program service under Subchapter D.
25-8 (c) All cases or suspected cases of lead poisoning
25-9 identified under this section shall be reported to the child's
25-10 attending physician and the department.
25-11 Sec. 87.090. QUARANTINE. (a) In addition to the notices
25-12 required by Section 87.088, if the director, or a health authority
25-13 with the concurrence of the director, has reasonable cause to
25-14 believe that a residence, child care facility, or public place
25-15 routinely occupied by children who belong to a class for whom
25-16 reporting or screening is required by Subchapters B and C is or may
25-17 be contaminated with dangerous concentrations of lead, the
25-18 director, or the health authority with the concurrence of the
25-19 director, may place the residence, child care facility, or public
25-20 place in quarantine for the period necessary for a medical
25-21 examination or technical analysis of samples taken from the
25-22 property to determine if the property is contaminated. The
25-23 director or health authority may post a quarantine notice on the
25-24 residence, child care facility, or public place stating there are
25-25 possible dangerous levels of lead contamination.
25-26 (b) The department or health authority shall send notice of
25-27 the quarantine notice by registered or certified mail to the person
26-1 who owns or controls the residence, child care facility, or public
26-2 place.
26-3 (c) The department or health authority shall remove the
26-4 quarantine notice and return control of the residence, child care
26-5 facility, or public place to the person who owns or controls it if
26-6 the property is found not to be contaminated with a dangerous level
26-7 of lead. After a thorough inspection and investigation, if the
26-8 residence, child care facility, or public place is found to be
26-9 contaminated with a dangerous level of lead, the director, or a
26-10 health authority with the concurrence of the director, by written
26-11 order may require the owner of the property to impose lead
26-12 abatement measures to decontaminate the residence, child care
26-13 facility, or public place.
26-14 (d) The director or health authority shall order the removal
26-15 of the quarantine notice and return control of the property to the
26-16 owner if the lead abatement measures are completed and the work
26-17 product meets the standards set by board rule. If the lead
26-18 abatement measures are ineffective or if there is not a technically
26-19 feasible abatement measure available for use, the department or
26-20 health authority may continue the quarantine and order the person
26-21 who owns the residence, child care facility, or public place:
26-22 (1) if the property is suitable for use only by
26-23 children who are in a class specified by board rule, to destroy the
26-24 property, other than land, in a manner that decontaminates the
26-25 property to prevent the spread of contamination;
26-26 (2) if the property is land, to securely fence the
26-27 perimeter of the land or any part of the land that is contaminated
27-1 to prevent entry by children who are in a class specified by board
27-2 rule; or
27-3 (3) to securely seal off a contaminated structure or
27-4 other property on land to prevent entry into the contaminated area
27-5 by children in a class specified by board rule until the quarantine
27-6 is removed by the board or health authority.
27-7 (e) The director or health authority may petition the county
27-8 or district court of the county in which the property is located
27-9 for orders necessary to protect the public health if:
27-10 (1) a person fails or refuses to comply with the
27-11 orders of the director or health authority as required by this
27-12 section; and
27-13 (2) the director or health authority has reason to
27-14 believe that the property is or may be contaminated with lead to
27-15 the extent that it presents an immediate threat to the public
27-16 health.
27-17 (f) After the filing of a petition, the court may grant a
27-18 temporary restraining order or a mandatory or prohibitory temporary
27-19 or permanent injunction for the health and safety of the public.
27-20 (g) The person who owns property shall pay all expenses of
27-21 implementing lead abatement measures, court costs, storage, and
27-22 other justifiable expenses. The court may require the person who
27-23 owns the property to execute a bond in an amount set by the court
27-24 to ensure the performance of any lead abatement measures,
27-25 restoration, or destruction ordered by the court. If the property
27-26 is an object, the bond may not exceed the value of the object in
27-27 its noncontaminated state. The bond shall be returned to the
28-1 person when the department or health authority informs the court
28-2 that the property is no longer contaminated or that the property
28-3 has been destroyed.
28-4 (h) If the court finds that the property is not
28-5 contaminated, it shall order the department or health authority to:
28-6 (1) remove the quarantine;
28-7 (2) if the property is an object, remove the
28-8 quarantine tags; and
28-9 (3) release the property to the person who owns or
28-10 controls it.
28-11 (i) The department or health authority, as appropriate,
28-12 shall charge the owner of the property for the cost of any
28-13 abatement measures performed by the department's or health
28-14 authority's employees. The department shall deposit the payments
28-15 received to the credit of the general revenue fund to be used for
28-16 the administration of this chapter. A health authority shall
28-17 distribute payments received to each county, municipality, or other
28-18 jurisdiction in an amount proportional to the jurisdiction's
28-19 contribution to the quarantine and control expense.
28-20 (j) In this section, "property" means:
28-21 (1) an object;
28-22 (2) a parcel of land; or
28-23 (3) a structure or other property on a parcel of land.
28-24 (Sections 87.091-87.100 reserved for expansion
28-25 SUBCHAPTER F. CONTROL MEASURES FOR RESIDENTIAL LEAD
28-26 CONTAMINANTS; EMERGENCY LEAD CONTAMINATION
28-27 AREAS
29-1 Sec. 87.101. DEFINITIONS. In this subchapter, "residence,"
29-2 as defined by Section 87.002, includes the soil surrounding the
29-3 residence and attached or adjacent garages, sheds, barns, and other
29-4 outbuildings.
29-5 Sec. 87.102. CHILDREN COVERED. This subchapter covers
29-6 children who are younger than six years of age.
29-7 Sec. 87.103. OWNER'S DUTY TO REMEDIATE LEAD CONTAMINATED
29-8 RESIDENCE. (a) If a child lives in a residence that is
29-9 contaminated with dangerous levels of lead, the owner shall remove
29-10 or cover the lead so that it is inaccessible to children as
29-11 required by this subchapter and board rules.
29-12 (b) If a residence that is contaminated with dangerous
29-13 levels of lead undergoes a change of ownership and as a result of
29-14 the change of ownership a child will become a resident, the new
29-15 owner shall remove or cover the lead to make it inaccessible to
29-16 children as required by this section and board rules.
29-17 (c) On the order of the director or a health authority, the
29-18 owner of a residence shall remove or cover the lead to make it
29-19 inaccessible to children if:
29-20 (1) a child who is at significant risk of lead
29-21 poisoning or repoisoning occupies or will occupy the residence for
29-22 at least a period of time specified by board rule; or
29-23 (2) a child of any age who has demonstrated pica or
29-24 whose cognitive development is delayed or retarded resides in or
29-25 will reside in the residence.
29-26 Sec. 87.104. LETTER OF COMPLIANCE. When the residence meets
29-27 the remediation standards specified by board rule, the owner may
30-1 obtain a letter of compliance from a lead inspector licensed by the
30-2 department, or if the department does not license those inspectors,
30-3 an inspector with the training and experience in residential lead
30-4 inspection specified by board rule.
30-5 Sec. 87.105. OCCUPANCY PROHIBITED. Except as specified by
30-6 board rule, a child may not occupy a residence or a residential
30-7 unit contaminated with dangerous levels of lead until remediation
30-8 is complete and an inspector has issued a letter of compliance to
30-9 the owner.
30-10 Sec. 87.106. APPLICATION OF SUBCHAPTER. Regardless of
30-11 whether a residence has been inspected under Subchapter E, the
30-12 provisions of this subchapter apply:
30-13 (1) to the owner of a residence if:
30-14 (A) a child lives in the residence; or
30-15 (B) a child occupies the residence for the
30-16 purpose of receiving child care; and
30-17 (2) to the owner of a residence when a residence
30-18 undergoes a change of ownership and as a result of that change of
30-19 ownership:
30-20 (A) a child will live in the residence; or
30-21 (B) a child will occupy the residence for the
30-22 purpose of receiving child care.
30-23 Sec. 87.107. NOTICE TO PROSPECTIVE PURCHASER OR TENANT OF
30-24 RESIDENCE. (a) An owner of a residence must inform a prospective
30-25 purchaser or tenant of the residence concerning any information the
30-26 owner has about the presence of dangerous levels of lead
30-27 contamination in or around the residence.
31-1 (b) The owner shall inform the prospective purchaser or
31-2 tenant of the residence about the availability of inspections for
31-3 lead contamination. After notice, if the prospective purchaser or
31-4 tenant chooses to have an inspection done, the owner must give the
31-5 prospective purchaser at least ten days to have an inspection
31-6 performed. The cost of the inspection is the responsibility of the
31-7 prospective purchaser or tenant.
31-8 (c) If the owner of the residence has given the prospective
31-9 purchaser or tenant the required notice of the existence of lead
31-10 contamination and the availability of inspections for lead
31-11 contamination, the owner must obtain the signature of the purchaser
31-12 or tenant, when or at any time before the sale is closed or the
31-13 lease or rental agreement is fully executed, on a document
31-14 acknowledging that the person has been given notice of the lead
31-15 contamination in or around the residence and the availability of
31-16 inspections for lead contamination.
31-17 (d) An owner who fails to give notice as required by this
31-18 section is liable for damages caused by the owner's failure to do
31-19 so. A violation by a person engaged in trade or commerce is an
31-20 unfair or deceptive act or practice within the meaning of
31-21 Subchapter E, Chapter 17, Business & Commerce Code.
31-22 (e) A real estate broker or real estate agent who represents
31-23 the owner in the sale, lease, or rental of the residence may act as
31-24 agent for the owner to fulfill the requirements of this section.
31-25 (f) If the owner has failed to inform the broker or agent of
31-26 the lead contamination or has concealed the contamination, the
31-27 broker or agent is not liable for failure to give notice of lead
32-1 contamination unless a reasonable, prudent broker or agent, in the
32-2 use of ordinary care under the same or similar circumstances, knew
32-3 or should have known about the lead contamination.
32-4 (g) The board shall adopt rules necessary to carry out this
32-5 section.
32-6 Sec. 87.108. EMERGENCY LEAD POISONING AREAS. (a) On the
32-7 basis of high rates of childhood lead poisoning, the director or
32-8 one or more health authorities may designate emergency lead
32-9 poisoning areas.
32-10 (b) A health authority may designate an emergency lead
32-11 poisoning area only:
32-12 (1) within the geographic boundaries under the health
32-13 authority's jurisdiction; and
32-14 (2) after the health authority, with the concurrence
32-15 of the director, provides notice to and consults the governing body
32-16 of each county and municipality with jurisdiction over the
32-17 territory in the affected area.
32-18 (c) After consulting with other appropriate state and
32-19 federal agencies, the board may adopt rules specifying criteria and
32-20 priorities for the designation of emergency lead poisoning areas.
32-21 (d) In an emergency lead poisoning area, the director or one
32-22 or more health authorities with the concurrence of the director may
32-23 order the inspection and investigation of the exteriors of certain
32-24 buildings, the interior of certain residences and schools, and all
32-25 soil on residential premises and in parks, vacant lots, school
32-26 grounds, and playgrounds.
32-27 (e) In a designated emergency lead poisoning area, in
33-1 addition to covering, removal, and other abatement activities
33-2 required by Section 87.103, paint, plaster, soil, and other
33-3 accessible materials contaminated with dangerous levels of lead and
33-4 located in residential premises must be removed, adequately
33-5 covered, or otherwise made inaccessible to children as specified by
33-6 board rule.
33-7 (f) Before beginning the removal, covering, or other
33-8 abatement of paint, plaster, soil, or other material, the owner or
33-9 a lead abatement worker must notify the department, the occupants
33-10 of the residence, the health authority of the jurisdiction in which
33-11 the residence is located, and any other persons specified by board
33-12 rules. The rules must also specify the form of and information
33-13 required in the notice.
33-14 (g) The lead abatement procedures shall be carried out in
33-15 accordance with board rules to ensure the safety of the occupants.
33-16 Sec. 87.109. INJUNCTION; CIVIL PENALTY. (a) If it appears
33-17 that a person has violated or is violating Section 87.103 or 87.107
33-18 or a rule adopted by the board to implement those sections, the
33-19 attorney general or a municipal, county, or district attorney, as
33-20 appropriate, at the request of the director or of a health
33-21 authority in whose jurisdiction the violation has occurred or is
33-22 occurring, may bring a civil suit for:
33-23 (1) injunctive relief to restrain the person from
33-24 continuing the violation or threat of violation;
33-25 (2) the assessment and recovery of a civil penalty for
33-26 a violation or continuing violation; or
33-27 (3) both injunctive relief and a civil penalty.
34-1 (b) The district court may grant injunctive relief, a civil
34-2 penalty, or both, as warranted by the facts. The injunctive relief
34-3 may include any prohibitory or mandatory injunction warranted by
34-4 the facts, including a temporary restraining order, temporary
34-5 injunction, or permanent injunction.
34-6 (c) The penalty may not exceed $1,000 a day for each
34-7 violation. Each day of a continuing violation is a separate
34-8 violation for the purpose of penalty assessment.
34-9 (d) In determining the amount of the penalty, the court
34-10 shall consider:
34-11 (1) the person's previous history of violations;
34-12 (2) the seriousness of the violation;
34-13 (3) any threat to the health, safety, or rights of the
34-14 public posed by the violations;
34-15 (4) the demonstrated good faith of the person charged;
34-16 and
34-17 (5) any other matters that justice may require.
34-18 (e) The department is an indispensable party in a suit
34-19 brought by a district, county, or municipal attorney under this
34-20 chapter.
34-21 (f) Venue for a suit brought under this section is in the
34-22 county in which the violation occurred, the county in which the
34-23 defendant resides, or Travis County.
34-24 (g) A civil penalty recovered in a suit brought by the
34-25 attorney general under this chapter shall be deposited in the state
34-26 treasury to the credit of the general revenue fund. A civil
34-27 penalty recovered in a suit brought by a district, county, or
35-1 municipal attorney under this chapter shall be divided equally
35-2 between the state and the county or municipality that first brought
35-3 the suit.
35-4 (h) The director, the attorney general, or a district,
35-5 county, or municipal attorney may each recover reasonable expenses
35-6 incurred in obtaining injunctive relief or civil penalties under
35-7 this section, including investigative costs, court costs,
35-8 reasonable attorney's fees, witness fees, and deposition expenses.
35-9 The expenses recovered by the director are for the administration
35-10 and enforcement of this chapter.
35-11 SECTION 2. This Act takes effect September 1, 1993, except
35-12 that Subchapters C, D, and F, Chapter 87, Health and Safety Code,
35-13 as added by this Act, take effect January 1, 1994.
35-14 SECTION 3. The importance of this legislation and the
35-15 crowded condition of the calendars in both houses create an
35-16 emergency and an imperative public necessity that the
35-17 constitutional rule requiring bills to be read on three several
35-18 days in each house be suspended, and this rule is hereby suspended.