BILL ANALYSIS
C.S.H.B. 1193
By: Berlanga
04-12-95
Committee Report (Substituted)
BACKGROUND
Orthotic and prosthetic providers deliver important health
care services. An orthotist is a health care professional who
provides care to a patient who requires an orthosis (brace) The
orthotist evaluates an individual's particular situation and
recommends the best type of orthosis to treat that patient,
performed in conjunction with a physician, typically an orthopedic
or general surgeon, or a physiatrist. The skill of the orthotist
may make the difference between walking or not walking, and as a
result, dependence or independence for the client.
A prosthetist is a health care professional who provides care
to a patient requiring a prosthesis (artificial limb) due to the
loss of a limb through disease or trauma. The prosthetist assesses
the needs of each patient and recommends to the prescribing
physician the best prosthetic design for that individual's needs.
The prosthetist's expertise directly affects the patient's
prospects for achieving the highest possible rehabilitation.
Currently, no states regulate orthotists and only one state
regulates prosthetists. The availability of pre-fabricated or "off
the shelf" devices has made orthotics and prosthetics a convenient
sideline for many persons not specifically trained in these
disciplines. However, merely applying a device out of a box does
not provide the total care necessary for precise fit, follow-up and
instruction in proper use. Ill-fitting devices will not be used by
a client, resulting in wasted tax dollars for those devices
purchased by Medicare or Medicaid. The profession is too advanced
to learn from a short apprenticeship or a few two or three day
seminars.
PURPOSE
As substituted, H.B. 1193 would provide regulation for
orthotists and prosthetists. The Texas Board of Orthotics and
Prosthetics would be created and administratively attached to the
Texas Dept. of Health. The Board would be authorized to establish
requirements for licensing and regulation of providers in the field
of orthotics and prosthetics in order to ensure that the public is
given quality treatment and safeguarded from the risk and
inefficiencies of inadequate or faulty care.
RULEMAKING AUTHORITY
H.B. 1193 delegates rulemaking authority to the new Board of
Orthotics and Prosthetics in Section 1 of the bill in Secs. 5(f)
and (l), Sec. (6)(b), Sec. 11(a), Secs. 23(a)(1) and (b), Sec.
26(a), and Sec. 28(d), and a deadline for rules adoption, October
1, 1996, falls in Section 2(d) of the bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 132, Revised Statutes, by adding new
Article 8920 as follows:
ART. 8920. REGULATION OF ORTHOTISTS AND PROSTHETISTS
Sec. 1. Provides title for the Act, "Orthotics and Prosthetics
Act."
Sec. 2. Provides definitions for the following: "Board",
"Commissioner", "Custom-fabricated", "custom-fitted", "department"
(meaning Texas Dept. of Health), "License", "Licensed orthotist",
"Licensed orthotist assistant", "Licensed prosthetist", "licensed
prosthetist assistant", "licenses prosthetist orthotist", "licensed
prosthetist orthotist assistant" "orthosis", "Orthotic or
prosthetic facility", "orthotics", "person", "profession of
orthotics or prosthetics", "prosthesis", "prosthetics", "registered
orthotic technician", "registered prosthetic orthotic technician",
and "registered prosthetic technician".
Sec. 3. (a) Creates the Texas Board of Orthotics and Prosthetics
as part of the Texas Dept. of Health (TDH) and instructs the board
to perform its duties with TDH.
(b) Composition of board, 6 members, appointed by governor with
senate consent.
(c) Establishes staggered 6-year terms, to expire on February 1,
of odd-numbered years.
(d) Describes positions for board appointment:
One member must be a licensed orthotist;
One member - licensed prosthetist;
One member - licensed prosthetist orthotist;
One member - public member who uses orthosis;
One member - public member who uses prothesis;
One member - public member who does not use either appliance.
(e) Provides for filling of vacancies on board.
(f) Exempts board members from liability for civil action.
(g) Subjects board to sunset act, with abolition Sept. 1, 2007.
Sec. 4. (a) Provides grounds and procedures for removal of a
member of the Board, boiler-plate language standard for governing
boards of state agencies and departments.
(b) Validity of board action not affected by ground for removal of
board member.
(c) Requires executive director to report grounds for removal.
Sec. 5. (a) Sets out powers and duties of the Board.
(b) Permits Board to collect fees for license application,
renewal, examination etc. to cover administrative costs, as
prescribed in the General Appropriations Bill, or established by
Board in a reasonable and necessary amount.
(c) Instructs the board to approval examinations required for
licensure, with exams to be offered at least annually.
(d) Permits the board to investigate complaints; issue, suspend,
deny and revoke licenses; reprimand and place licensees on
probation; issue subpoenas; and hold hearings.
(e) Requires board to keep information files on complaints and
notify parties of complaint status.
(f) Requires board to propose and adopt rules as necessary to
administer its duties; such rules must be submitted to the Attorney
General for review. Rules must also be consistent with TDH policy
and procedure.
(g) Requires the Commissioner of Health to appoint an executive
director to administer the board's activities. Permits the board
to use personnel, facilities, furniture and equipment, etc.
supplied by TDH.
(h) Requires the executive director or a designee to develop a
career ladder for staff.
(i) Requires the executive director or designee to develop system
of evaluating staff performance.
(j) Requires board to prepare information for consumers relating
to the board's regulatory functions and consumer's legal rights.
(k) Requires board to assist legal authorities in prosecuting
persons violating this act.
(l) Requires board to prepare or approve continuing education
programs for licensees, and adopt rules requiring license holder to
participate in continuing education to renew licenses.
(m) Requires board to develop and implement policies defining
responsibilities of staff and board.
Sec. 6. (a) Requires Board to prepare information of public
interest relating functions of board and complaint procedures.
(b) Requires board by rule to establish to notify consumers and
service recipients of board's complaint division.
(c) Requires board to provide phone numbers, including a toll-free
number if possible, for complaints.
Sec. 7. Requires Board to develop and implement policies for
public participation in its activities.
Sec. 8. Requires Board to establish written plan for program
accessibility for non-English speaking people.
Sec. 9. Requires Board members to comply with training
requirements established by other state agencies that have
authority to establish Board requirements.
Sec. 10. Subjects board meetings to Open Meetings Act and
Administrative Procedures Act in Texas Govt. Code.
Sec. 11. (a) Requires board to elect presiding officer, secretary
and other officers as needed. Allows presiding officer or three
members to request special meetings. Permits board to adopt rules
governing meeting procedures.
(b) Requires executive director to keep a record of board meetings
and maintain register of license holders, both open to public
inspection. Requires executive director to send a copy of the
register to the secretary of state on March 1 of each year. Deems
a certified copy of the register as admissible as evidence in a
state court.
Sec. 12. Permits board members to be compensated and reimbursed
for travel expenses, as provided by the General Appropriations Act.
Sec. 13. Prohibits registered lobbyists from serving on the Board.
Sec. 14. Lists restrictions on appointment for public members of
the board.
Sec. 15. Provides conflict of interest restrictions for those
seeking employment with the Board.
Sec. 16. Subjects financial transactions of the Board to State
Audit.
Sec. 17. Requires Board to report annually to the governor and
presiding legislative officers regarding funds received and
disbursed during the prior year.
Sec. 18. (a) Establishes equal employment opportunity (EEO)
policies and required written statement, including personnel
policies, analysis of workforce, determination of underutilization
and methods to address underutilization.
(b) Requires annual EEO policy statements to be reviewed by the
Comm'n on Human Rights and filed with the governor's office.
(c) Requires governor's office to deliver biennial report
containing EEO information, separately or combined with another
report.
Sec. 19. Requires Board to provide information for members and
employees regarding qualifications and responsibilities and
standards of conduct.
Sec. 20. Requires TDH to receive and account for funds derived
herein, funds deposited in the general revenue fund.
Sec. 21. (a) Establishes exemptions from licensure under this Act
for license holders of other state agencies, if:
(1) person does not represent himself as license holder for
orthotics or prosthetics, and is an orthotist, prosthetist, a
combination thereto or an assistant to a person in one of those
professions, or uses the terms or designated letters in connection
with the person's license; and
(2) person's practice adheres to laws and rules of his own license
and does not violate Sec. 22 of this Act.
(b) Creates an exemption for students in orthotics or prosthetics,
studying at a program recognized by the American Medical Ass'n and
accredited by the Comm'n on Accreditation of Allied Health
Education Programs, or working in a recognized training center or
research facility is activities and services are part of person's
course of study.
(c) Specifically exempts licensed podiatrists.
(d) Exempts certified pedorthists and sets out certification
standards.
(e) Exempts certified fitters or master orthotists, credentialed
by Nat'l Ass'n of Retail Druggists.
Sec. 22. PROHIBITED ACTS.
(a) Prohibits practice or actions as an assistant unless person is
licensed under this Act.
(b) Prohibits use of terms or letters listed above, unless person
is licensed under this Act or an assistant thereto.
(c) Declares a violation of this Act if persons violates Sec.
161.091, Health & Safety Code, relating to illegal remuneration.
Sec. 23. PROSTHETIST AND ORTHOTIST LICENSE REQUIREMENTS.
(a) Requires person to file written application with the board and
pay a nonrefundable application fee to obtain a license under this
Act; also requires
(1) completion of formal training, as established by board
rule;
(2) completion of clinical residency, in compliance with
board standards; and
(3) passage of written and practical exams, as required by
the board.
(b) Requires board by rule to establish licensing requirements,
including:
(1) either a bachelor's degree in orthotics &
prosthetics from certain institutions, or a bachelor's
degree and prosthetic or orthotic certificate from
certain institutions; and
(2) at least 1,900 hours of professional clinical
residency under direct supervision of a person licensed
under this Act.
(c) Establishes procedures for exemption for persons who are Texas
residents and have provided orthotic, prosthetic, or orthotic and
prosthetic care for the past three years and who are applying for
license before the 181st day after the board's initial rules are
adopted and published.
(d) Permits a person who has not provided services for the last
three years to obtain a license by completing and passing written
and practical exams required by the board.
Sec. 24. PROSTHETIST OR ORTHOTIST ASSISTANT LICENSE.
(a) Requires applicants for license as orthotist or prosthetist
assistants to file written application with the board and pay the
nonrefundable application fee required by the board.
(b) Requires applicant to present evidence of completion of an
educational program and clinical residency, as required by the
board.
(c) Permits an assistant licensed herein to provide only ancillary
patient care services, as defined by the board, in the supervisor's
discipline.
(d) Establishes exemption from assistant license requirements for
persons who have practiced as an assistant for the past five years
and who are applying before the 181st day after the board's initial
rules are adopted and published.
Sec. 25. PROSTHETIC OR ORTHOTIC TECHNICIAN REGISTRATION.
(a) Requires applicants for registered prosthetic technicians or
registered orthotic technicians to file written applications with
the board and pay nonrefundable application fees.
(b) Requires applicants to present evidence of completion of
educational programs and lab experience, as required by the board.
(c) Establishes exemption from registration requirements for
persons who are Texas residents and have practices as orthotic or
prosthetic technicians for the past 5 consecutive years and who are
applying before the 181st day after the date the board's initial
rules are adopted and published.
Sec. 26. ACCREDITATION OF FACILITIES.
(a) Requires board by rule to adopt requirements for accreditation
and renewal or accreditation of facilities in which the profession
and practice or orthotics or prosthetics is conducted.
(b) Permits board to require only one application for
accreditation for persons owning more than one facility, although
each facility must meet requirements.
(c) Requires facilities to be under the on-site direction of a
licensee.
(d) Declares that rules adopted under this section may not
prohibit a licensee from practicing in a facility within the scope
of the person's license.
Sec. 27. ISSUANCE OF LICENSE.
(a) Requires board to issue license to persons who meet
qualifications under this Act and requirements adopted by the
board. Licenses are valid for two years from date of issuance.
(b) Permits board to issue license or registration only to an
individual; accreditation may be issued only to a facility.
(c) Permits board to grant licenses in either orthotics or
prosthetics, or in both fields, if person meets board requirements.
Sec. 28. PROVISIONAL LICENSE.
(a) Requires persons practicing comprehensive prosthetic or
orthotic patient management, but not meeting the licensing
requirements of this Act by October 1, 1996, and who is not exempt,
to comply with the licensing requirements in Sec. 23(a) and (b) by
October 1, 2002.
(b) Permits a persons subject to this section to apply for a
provisional license by filing written application with the board
and paying a nonrefundable application fee.
(c) Limits issuance of provisional licenses to persons who are
actively engaged in complying with the educational and clinical
licensing requirements of Sec. 23(a) and (b). Permits the board to
revoke provisional licenses for those who do not comply.
(d) Declares provisional license valid for two years from date of
issuance, although may be renewed with documentation as required by
board rule.
(e) Expiration date for provisional licensing section: January 1,
2003.
Sec. 29. TEMPORARY LICENSE.
(a) Permits board to issue temporary licenses for persons who have
recently become Texas residents; applied for licensing; and have
been licensed in the state of the persons' former residence,
provided the licensing requirements are equal to or exceed those
under this Act.
(b) Declares temporary license valid for one year from date of
issuance, with renewal for not more than one additional year, if
the applicant presents good cause.
Sec. 30. STUDENT REGISTRATION.
(a) Permits the board to issue a student registration certificate
to persons who hold either a bachelor's degree in orthotics and
prosthetics conferred by a college or university recognized by the
American Medical Ass'n or accredited by the Comm'n on Accreditation
of Allied Health Education Programs, and who is working toward
fulfillment of the licensing requirements.
(b) Permits student registrants to work only under direct
supervision of a licensee who is responsible for the student's
acts.
(c) Declares student registration certificate valid for two years
from date of issuance, with renewal once for an additional two
years.
Sec. 31. EXAMINATION EXEMPTION. Permits board to accept proof
that an applicant is licensed in another state as a substitute for
the examination.
Sec. 32. CONTINUING EDUCATION.
(a) Requires renewing licensees to submit evidence of satisfactory
completion of continuing education requirements.
(b) Requires board to notify license holders of a failure to
comply with continuing education requirements and provide three
months notice before taking action to suspend or revoke a license.
Sec. 33. DISCIPLINARY PROVISIONS.
(a) After notice and opportunity for hearing, permits the board to
revoke, suspend or refuse to renew licenses upon finding that the
person:
(1) obtained the license fraudulently;
(2) engaged in fraud or deceit in providing services;
(3) engaged in unprofessional or unethical conduct;
(4) engaged in gross negligence or malpractice; or
(5) violated this Act or board rule.
(b) Permits reinstatement by the board of revoked licenses after
one year.
Sec. 34. CIVIL PENALTY.
(a) Subjects person violating this Act to civil penalty of $200
for 1st violation, $500 for subsequent violations. If the board
requests, the Attorney General must bring action to collect a
penalty.
(b) Declares each day of violation to be a separate violation.
SECTION 2. (a) Provides for gubernatorial appointment of initial
Board members by October 1, 1995, with terms of each two members
expiring Feb. 1, 1997, 1999, and 2001.
(b) Requires initial board members to meet qualifications listed
below:
one member = orthotist who is ABC certified, Texas
resident and in practice for 5 years before appointment;
two members = orthotists who are BOC credentialed,
Texas residents and in practice for 5 years;
one member = prosthetist orthotist who is ABC
certified, Texas resident, in practice for 5 years;
one member = public member who uses an orthosis
one member = public member who uses a prosthesis
(c) Requires board members to meet licensing requirements by
February 1, 1997.
(d) Requires Board to adopt rules by Oct. 1, 1996.
SECTION 3. (a) Effective date, except for subsection (b), Sept.
1, 1995.
(b) Sections 22 and 34 of this Act take effect Oct. 1, 1996.
SECTION 4. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The original bill created the new board as part of the Texas
Rehabilitation Commission. The substitute version administratively
attaches the board to the Texas Dept. of Health. The substitute
also refines exemptions from licensure, clarifying that other
health care practitioners adhering to their own licensure acts are
exempt. Specific exemptions have been added for podiatrists,
certified pedorthists, and certain fitters and orthotists
credentialed by the Nat'l Ass'n of Retail Druggists.
The committee substitute also makes minor changes in license
requirements, setting up procedures for prosthetist or orthotist
assistants and registration for prosthetic and orthotic
technicians. The substitute also adds a provision for accrediting
orthotic and prosthetic facilities. The original bill did not
allow for current practitioners to continue unless they had been
credentialed by the American Board for Certification (ABC).
Preferential treatment for ABC practitioners was removed in the
substitute and a 3-year grandfather clause was added to allow
current orthotists and prosthetists to do business.
SUMMARY OF COMMITTEE ACTION
In a public hearing on April 3, 1995, the Human Services Committee
considered H.B. 1193 by Berlanga. The following witnesses
testified for H.B. 1193:
Dennis Christopher Cole, representing himself and Nat'l Ass'n for
Advancement of Orthotics & Prosthetics
Rose B. Olander, Austin
Tom Lunsford, The Woodlands
Donald F. Hayden, Texas Physical Therapy Ass'n
Mike Allen, representing himself & Certified Orthotic & Prosthetic
Advocates
John Fergason, Dallas
Donald E. Katz, Carrolton
Gary A. Lamb, Abilene
Mary Medina, Pearsall
James McCoy, representing himself and the Texas Chapter of American
Academy of Orthotist & Prosthetist, ABC, Texas Ass'n of
Orthotist & Prosthetist, and Certified Orthotic & Prosthetic
Advocates
William T. Murray, Temple
The following witnesses testified against H.B. 1193:
Mitchel Presley, Burleson
William A. Millar, Iowa Park
Dr. Deborah P. Kelly, Board for Orthotist Certification
Scott Atha, Pflugerville
Randy Hart, Kilgore
Mark Voit, representing himself and the Center for Orthotics &
Prosthetics, Inc., McAllen
Robert D. Lee, San Antonio
John Martinez, representing himself and the Board for Orthotics
Certification
Kevin S. King, representing himself and the BOC/IAOP, Lufkin
Robert E. Draeger, representing himself and the Board for Orthotist
Certification
Gary W. Prescott C.O., Bulverde
Ben F. Robinson, Fort Worth
Frank C. de Baca, Board for Prosthetic Certification, Kennedale
Robert Barnard, Corpus Christi
Tom Shiller, Corpus Christi
James A. Brothers, representing himself and the Board for Orthotist
Certification
Melvin R. Davis, representing himself and the Board for Orthotist
Certification
Lane Kelley Kimbrough, representing himself and Region I of the
Internat'l Ass'n of Orthotist & Prosthetist
Dale S.L. Sheen, representing himself and Medical Center Brace &
Limb, Inc. Houston
Claude Horsley, representing himself and the Board for Orthotic
Certification
Greg A. Nesteby, representing himself and B&G Orthopedic Appl.,
Lubbock
Darrell F. Tomblin, representing himself and Orthotics Management
Inc., Ft. Worth
Bud C. Tabor, representing himself and Board for Orthotist
Certification
David L. Cumins, representing himself and Board for Orthotist
Certification
Raymond Blasingame, Abilene
Mark A. Kirchner, B.O.C., San Antonio
George E. Brooks, Abilene
Dan Hughes, Blanco
Ken Wells, representing himself and Internat'l Ass'n of Orthotist
& Prosthetics
Karen Kenney, Texas Pharmacy Ass'n
Eugene S. "Gene" Sinclair, Austin
No one testified as neutral on H.B. 1193. Hearing no further
testimony, H.B. 1193 was left pending. On April 12, 1995, the
committee met in formal meeting and took up H.B. 1193 which had
been pending. Rep. Wohlgemuth offered a committee substitute which
was adopted without objection. Rep. Krusee moved to pass H.B. 1193
favorably as substituted and the motion prevailed by a record vote
of 7 Ayes, 0 Nays, 0 PNV, and 2 Absent.