BILL ANALYSIS
C.S.H.B. 1193
By: Berlanga (Zaffirini)
Health and Human Services
5-24-95
Senate Committee Report (Substituted)
BACKGROUND
Currently, Texas does not regulate the practice of orthotics or
prosthetics.
PURPOSE
As proposed, C.S.H.B. 1193 creates the Texas Board of Orthotics and
Prosthetics to establish requirements and regulations for providers
in the field of orthotics and prosthetics; provides penalties.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the Texas Board of Orthotics and Prosthetics under SECTION 1
(Sections 5(f) and (l), 6(b), 11(a), and 26(a), Article 8920,
V.T.C.S.) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 132, V.T.C.S., by adding Article 8920, as
follows:
Art. 8920. REGULATION OF ORTHOTISTS AND PROSTHETISTS
Sec. 1. SHORT TITLE: Orthotics and Prosthetics Act.
Sec. 2. DEFINITIONS. Defines "board," "commissioner,"
"custom-fabricated," "custom-fitted," "department," "license,"
"licensed orthotist," "licensed orthotist assistant,"
"licensed prosthetist," licensed prosthetist assistant,"
"licensed 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. BOARD. (a) Establishes the Texas Board of Orthotics
and Prosthetics (board) as part of the Texas Department of
Health (department), and requires the board to perform its
duties as a board with the department.
(b) Declares that the board consists of six members
appointed by the governor with the advice and consent of the
senate. Requires appointments to be made without regard to
certain personal characteristics.
(c) Declares that board members are appointed for staggered
six-year terms.
(d) Sets forth the composition of the board.
(e) Sets forth procedures in the event of a vacancy on the
board.
(f) Declares that a board member is not liable for damages
in a civil action for any act performed in good faith in the
execution of the member's duties.
(g) Subjects the board to Chapter 325, Government Code.
Provides that, unless continued in existence by that
chapter, the board is abolished and this Act expires
September 1, 2007.
Sec. 4. REMOVAL FROM BOARD. (a) Sets forth the grounds for
removal from the board.
(b) Provides that the validity of an action of the board is
not affected by the fact that the action was taken when a
ground for removal of a board member existed.
(c) Requires the executive director, if the executive
director has knowledge that a potential ground for removal
exists, to notify the presiding officer of the board, and
requires the presiding officer to notify the governor that
a potential ground exists.
Sec. 5. BOARD POWERS AND DUTIES. (a) Requires the board to
review applications for a license at least once each year.
(b) Authorizes the board to collect license application
fees, renewal fees, examination fees, and other fees for
administrative expenses. Requires the board to set the fees
in amounts reasonable and necessary for the administration
and implementation of this Act, if the General
Appropriations Act does not set the amount of those fees.
(c) Requires the board to approve any examination required
for a license under this Act. Requires each examination to
be offered at least once each year.
(d) Authorizes the board to investigate complaints; issue,
suspend, deny, and revoke licenses; reprimand license
holders and place license holders on probation; issue
subpoenas; and hold hearings.
(e) Requires the board to keep an information file about
each complaint filed with the board relating to a person or
entity regulated by the board. Requires the board, if a
written complaint that the board has authority to resolve is
filed with the board, to notify the parties to the complaint
at least quarterly of the status of the complaint unless the
notice would jeopardize an undercover investigation.
(f) Requires the board to propose rules consistent with this
Act and submit the proposed rules to the attorney general
for review. Requires the board to adopt rules consistent
with the advice of the attorney general and to consider the
applicable policies and procedures of the department in
adopting rules.
(g) Requires the commissioner to appoint an executive
director to administer this Act. Authorizes the board to
use personnel and items supplied by the department.
(h) Requires the executive director or a designee to develop
an intra-agency career ladder program to require intra-agency posting of all monetary level positions concurrently
with any public posting.
(i) Requires the executive director or a designee to develop
a system of annual performance evaluation based on
measurable job tasks. Requires all merit pay for board
employees to be based on the system.
(j) Requires the board to prepare information of consumer
interest describing the regulatory functions of the board
and legal rights of consumers as provided by this Act.
(k) Requires the board to assist legal authorities in the
prosecution of any person violating this Act.
(l) Requires the board to prepare or approve continuing
education programs for license holders and to adopt rules
requiring a license holder to participate in an approved
continuing education program to renew a license issued under
this Act.
(m) Requires the board to develop and implement policies
that clearly define the respective responsibilities of the
governing body and staff of the board.
Sec. 6. PUBLIC INFORMATION. (a) Requires the board to
prepare information, to be made available to the general
public and appropriate state agencies, of public interest
describing the functions of the board and describing the
procedures for the filing and resolution of complaints.
(b) Requires the board, by rule, to establish methods by
which consumers and service recipients are notified of the
name, mailing address, and telephone number of the board in
order to direct complaints to the board. Sets forth
guidelines for notification.
(c) Requires the board to list a toll-free number that may
be called to present a complaint about a person regulated or
required to be regulated under this Act if the toll-free
number is established under another state law.
Sec. 7. PUBLIC PARTICIPATION IN BOARD MEETINGS. Requires the
board to develop and implement policies that provide the
public with a reasonable opportunity to appear before the
board.
Sec. 8. PROGRAM ACCESSIBILITY. Requires the board to prepare
and maintain a written plan describing how a person who does
not speak English can be provided reasonable access to board
programs, and to comply with applicable federal and state
laws.
Sec. 9. TRAINING; STANDARDS OF CONDUCT INFORMATION. Requires
each board member to comply with the board member training
requirements of another state agency that is given authority
to establish the requirements for the board.
Sec. 10. OPEN MEETINGS AND ADMINISTRATIVE PROCEDURE
REQUIREMENTS. Subjects the board to Chapters 551 and 2001,
Government Code.
Sec. 11. ORGANIZATION OF BOARD. (a) Requires board members
to elect from the membership of the board a presiding officer,
secretary, and other officers required for the conduct of
business. Requires special meetings to be called by the
presiding officer on the written request of any three members.
Authorizes the board to adopt rules necessary to govern its
proceedings.
(b) Requires the executive director to keep a record of each
meeting of the board, and to maintain a register of the
names of all persons holding a license under this Act. Sets
forth requirements for the register.
Sec. 12. COMPENSATION. Entitles a board member to
compensation and reimbursement of the member's travel expenses
as provided by the General Appropriations Act.
Sec. 13. EFFECT OF LOBBYING ACTIVITY. Prohibits a person
from serving as a board member or acting as the general
counsel to the board if the person is required to register as
a lobbyist because of the person's activities for compensation
on behalf of a profession related to the operation of the
board.
Sec. 14. PUBLIC MEMBERSHIP RESTRICTION. Declares that a
person is not eligible for appointment by the governor as a
public member of the board under certain circumstances.
Sec. 15. CONFLICT OF INTEREST RESTRICTIONS. Prohibits an
officer, employee, or paid consultant, or the spouse of an
officer, employee, or paid consultant, of a Texas trade
association in the field of health care from being a member or
certain employee of the board. Describes a Texas trade
association.
Sec. 16. AUDIT. Subjects the financial transactions of the
board to audit by the state auditor in accordance with Chapter
321, Government Code.
Sec. 17. REPORT TO GOVERNOR AND LEGISLATURE. Requires the
board, during January of each year, to file with the governor
and the presiding officer of each house of the legislature a
complete and detailed written report accounting for all board
funds during the preceding year.
Sec. 18. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) Requires
the executive director or a designee to prepare and maintain
a written policy statement to ensure implementation of a
program of equal employment opportunity under which all
personnel transactions are made without regard to certain
personal characteristics. Requires the statement to include
certain information.
(b) Requires the policy statement to cover an annual period,
be updated annually, be reviewed by the Commission on Human
Rights for compliance with Subsection (a)(1), and be filed
with the governor's office.
(c) Requires the governor's office to deliver a biennial
report to the legislature based on the information received
under Subsection (b).
Sec. 19. NOTICE OF STANDARDS OF CONDUCT. Requires the board
to provide its members and employees information regarding
their qualifications for office or employment under this Act
and their responsibilities under applicable laws relating to
standards of conduct for state officers or employees.
Sec. 20. APPROPRIATIONS TO TEXAS DEPARTMENT OF HEALTH.
Requires the department to receive and account for funds
derived under this Act. Requires the department to deposit
all funds collected under this Act to the credit of the
general revenue fund.
Sec. 21. EXEMPTIONS. Provides that this Act does not apply
to certain persons and activities.
Sec. 22. PROHIBITED ACTS. (a) Prohibits a person from
practicing, attempting to practice, or offering to practice
prosthetics or orthotics; act as an assistant to a person who
practices prosthetics or orthotics; or in any way hold the
person out as being able to practice prosthetics or orthotics
unless the person holds a license under this Act.
(b) Prohibits a person or the person's employees, agents, or
representatives from using in connection with the person's
name or business activities the terms described in Section
21(a)(1), indicate that a prosthetic or orthotic service is
provided or supplied, or extend or provide prosthetic or
orthotic services unless the person is a prosthetist or
orthotist, or an assistant to a prosthetist or orthotist,
under this Act.
Sec. 23. PROSTHETIST AND ORTHOTIST LICENSE REQUIREMENTS. (a)
Requires an individual, to obtain a license to practice
prosthetics or orthotics in this state, to file a written
application with the board, pay the application fee prescribed
by the board, and have successfully completed certain
training, clinical residency, and examinations.
(b) Requires the requirements for a license to include
certain educational degrees.
(c) Authorizes a person to apply for an exemption from the
license requirements adopted by the board under this section
if the person applies by a certain date and the person is a
Texas resident who must have provided comprehensive
orthotic, prosthetic, or orthotic and prosthetic care in
this state for the three years preceding the date of the
application.
(d) Authorizes a person to apply for an exemption from the
license requirements adopted by the board under this section
if the person applies not later than the 181st day after the
date the board's initial rules under this Act are finally
adopted and published and the person is a resident of this
state who has provided comprehensive orthotic, prosthetic,
or orthotic and prosthetic care outside this state for not
less than the 15 years preceding the date of the person's
application.
(e) Authorizes a person who has provided comprehensive
orthotic, prosthetic, or orthotic and prosthetic care for
less than the three years required by Subsection (c) to
obtain a license to practice in this state by completing and
passing all written and practical examinations approved and
required by the board.
(f) Requires the board to issue a license to a person who is
determined to be exempt from the license requirements under
Subsection (c) of this section or who obtains a license
under Subsection (d) of this section. Entitles such a
license holder to the same privileges as if the person met
the educational and vocational requirements under Subsection
(a) or (b) of this section. Subjects the person to the
license renewal requirements adopted by the board, except
for the academic, clinical training, and examination
requirements, which may not be imposed as a condition of the
person's license.
Sec. 24. PROSTHETIST OR ORTHOTIST ASSISTANT LICENSE. (a)
Requires an applicant for a license as a prosthetist assistant
or orthotist assistant to file a written application with the
board and pay the application fee prescribed by the board.
(b) Requires an applicant under this section to present
evidence to the board that the applicant has completed an
educational program prescribed and adopted by the board.
(c) Authorizes an assistant licensed under this section to
provide only ancillary patient care services in the
discipline in which the assistant's supervisor is licensed
under this Act.
(d) Authorizes a person to apply for an exemption from the
license requirements under this section if the person
applies by a certain date and is a Texas resident who has
practiced as an assistant for five consecutive years in this
state.
Sec. 25. PROSTHETIC OR ORTHOTIC TECHNICIAN REGISTRATION. (a)
Requires an applicant for registration as a registered
prosthetic technician or registered orthotic technician to
file an application with the board and pay the application fee
prescribed by the board.
(b) Requires an applicant to present evidence to the board
that the applicant has completed an educational program and
laboratory experience as prescribed and adopted by the
board.
(c) Authorizes a person to apply for an exemption from the
registration requirements under this section if the person
applies by a certain date and is a Texas resident who has
practiced as an orthotic or prosthetic technician for five
consecutive years in this state.
Sec. 26. ACCREDITATION OF FACILITIES. (a) Requires the
board, by rule, to adopt requirements for the accreditation
and the renewal of an accreditation of an orthotic or
prosthetic facility in which the profession and practice of
orthotics or prosthetics is conducted. Provides that a
facility licensed under Title 4B, Health and Safety Code, is
exempt from the requirements for accreditation in this
section.
(b) Authorizes the board, if one or more facilities are
owned by a person, to require only one application for the
accreditation of all the person's facilities. Requires each
orthotic or prosthetic facility to meet the requirements
prescribed by the board.
(c) Requires an orthotic or prosthetic facility to be under
the on-site direction of an orthotist or prosthetist
licensed by the board in the discipline for which
accreditation is sought.
(d) Prohibits the rules adopted under this section from
prohibiting a licensed individual form practicing in an
orthotic or prosthetic facility within the scope of the
individual's license.
Sec. 27. ISSUANCE OF LICENSE. (a) Requires the board to
issue a license in prosthetics or orthotics to an applicant
who meets the requirements of this Act. Provides that a
license is valid for two years from the date issued and may be
renewed before expiration.
(b) Authorizes the board to issue a license or registration
under this Act only to an individual, and an accreditation
only to an orthotic or prosthetic facility.
(c) Authorizes a license to be granted in either orthotics
or prosthetics if the person meets the requirements
established by the board.
Sec. 28. PROVISIONAL LICENSE. (a) Requires a person
practicing comprehensive prosthetic or orthotic management who
does not meet the requirements of this Act for licensing as a
prosthetist or orthotist by October 1, 1996, and who is not
exempt under this Act, to comply with the requirements of
Sections 23(a) and (b) on or before October 1, 2002.
(b) Authorizes a person subject to this Act to apply for a
prosthetist or orthotist provisional license by filing an
application with the board and paying an application fee
prescribed by the board.
(c) Authorizes a provisional license to be issued only to an
individual actively engaged in complying with the
educational and clinical requirements of Sections 23(a) and
(b) of this Act. Authorizes a provisional license to be
revoked by the board if the board determines that the
provisional license holder is not in compliance with this
section.
(d) Provides that a provisional license is valid for two
years from the date issued and may be renewed with required
documentation.
(e) Provides that this section expires January 1, 2003.
Sec. 29. TEMPORARY LICENSE. (a) Authorizes the board to
issue a temporary license to an individual who has recently
become a resident of this state; has applied for licensing as
an orthotist, prosthetist, or both; and has been licensed by
the state in which the person formerly resided that has
licensing requirements equal to or in excess of the
requirements of this Act.
(b) Provides that a temporary license is valid for one year
from the date issued, and may be renewed for not more than
one additional year upon presentation of sufficient evidence
of good cause for renewal.
Sec. 30. STUDENT REGISTRATION. (a) Authorizes the board to
issue a student registration certificate to an individual who
holds a certain degree and is working toward fulfillment of
the requirements for licensing as a prosthetist, orthotist, or
prosthetist orthotist.
(b) Authorizes a student registrant to work only under the
direct supervision of a licensed orthotist, prosthetist, or
prosthetist orthotist who is responsible for the acts of the
student registrant and is licensed in the discipline of the
clinical residency.
(c) Provides that a student registration certificate is
valid for two years from the date issued and may be renewed
once for an additional two years.
Sec. 31. EXAMINATION EXEMPTION. Authorizes the board to
accept as a substitute for the examination requirement proof
that the applicant for the exemption holds a current license
in a state that has licensing requirements that are equal to
or exceed the requirements of this Act.
Sec. 32. CONTINUING EDUCATION. (a) Requires an applicant for
renewal of a license to submit to the board evidence of
satisfactory completion of the continuing education
requirements required by the board.
(b) Requires the board to notify each license holder of the
holder's failure to comply with the board's continuing
education requirements and that if the holder does not
obtain the required continuing education within three months
of the date the notice was given, the board may take any
action authorized by this Act concerning the suspension or
revocation of the license.
Sec. 33. DISCIPLINARY PROVISIONS. (a) Authorizes the board,
after notice and opportunity for a hearing, to revoke,
suspend, or refuse to renew a license issued under this Act on
certain findings.
(b) Authorizes a license revoked under Subsection (a) to be
reinstated after the first anniversary of the date of the
revocation.
Sec. 34. CIVIL PENALTY. (a) Subjects a person who violates
this Act to a civil penalty of $200 for the first violation
and $500 for each subsequent violation. Requires the attorney
general, at the board's request, to bring an action in the
name of the state to collect a civil penalty under this
section.
(b) Provides that each day a violation of Section 22
continues is a separate violation for the purpose of this
section.
SECTION 2. Sets forth guidelines and requirements for initial board
member appointments and terms.
SECTION 3. Effective date: September 1, 1995.
Effective date of Sections 22 and 34: October 1, 1996.
SECTION 4. Emergency clause.