BILL ANALYSIS H.B. 2658 By: Hilderbran (Galloway) Health and Human Services 05-17-95 Senate Committee Report (Unamended) BACKGROUND In the late 1970s, Texas adopted the policy of encouraging and assisting blind and severely disabled persons to achieve maximum independence by engaging them in productive employment activities. To implement this policy, the state created a program whereby products and services performed by people with disabilities would receive special treatment in the purchasing procedures of state agencies. The Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons was established to determine the fair market value of the products and services. PURPOSE As proposed, H.B. 2658 creates the Texas Council on Purchasing from People with Disabilities, to replace the Committee on Purchases of Products and Services of Blind and Severely Disabled Persons. RULEMAKING AUTHORITY It is the committee's opinion that rulemaking authority is granted to the Texas Council on Purchasing from People with Disabilities under SECTION 1 (Section 122.013(a), Human Resources Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 122, Human Resources Code, as follows: CHAPTER 122. New heading: TEXAS COUNCIL ON PURCHASING FROM PEOPLE WITH DISABILITIES Sec. 122.001. PURPOSE. Declares that the purpose of this chapter is, among others, to further the state's policy of encouraging and assisting persons with disabilities to achieve maximum personal independence by engaging in useful and productive employment activities. Makes a nonsubstantive change. Sec. 122.002. DEFINITIONS. Defines "central nonprofit agency," "commission," "community rehabilitation program," "council," and "disability." Sec. 122.003. New heading: TEXAS COUNCIL ON PURCHASING FROM PEOPLE WITH DISABILITIES. (a) Declares that the Texas Council on Purchasing from People with Disabilities (council), in place of the Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons (committee), is composed of three private citizens conversant with the employment needs of persons with disabilities, including blindness, and with current experience in the pricing and marketing of goods and services; three representatives of community rehabilitation programs that represent different disability groups and that provide or seek to provide products produced or services performed by persons with disabilities; and three representatives of state agencies or political subdivisions that purchase a significant amount of products produced or services performed by persons with disabilities. Deletes certain other members. (b) Provides that council members serve staggered terms of six years with the terms of three members expiring on January 31 of each odd-numbered year. Deletes a provision regarding the sharing of the costs of member reimbursement. Makes a conforming change. (c) Requires the governor to select one council member to serve as presiding officer. (d) Declares that a person is not eligible for appointment as a member to the council under Subsection (a)(1) if the person or the person's spouse partakes in certain activities related to the council. Deletes a provision regarding a member who is unable to attend a meeting. (e) Prohibits a person from serving as a member of the council who is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the council. (f) Requires appointments to the council to be made without regard to certain personal characteristics, including disability and age. (g) Provides that it is a ground for removal from the council if a member, among other acts, violates a prohibition established by Subsection (d) or (e) of this section; cannot because of disability or illness discharge the member's duties for the substantial part of the term for which the member is appointed; or is absent from more than half of the regularly scheduled meetings that the member is eligible to attend during a calendar year, unless the absence is excused by a majority vote of the council. Makes conforming changes. (h) Makes conforming changes. (i) Requires the executive director of the General Services Commission (executive director), if the executive director has knowledge that a potential ground for removal exists, to notify the presiding officer of the council. Requires the presiding officer, if the presiding officer is notified or has knowledge that a potential ground for removal exists, to notify the governor and attorney general. Requires the executive director, if the potential ground for removal involves the presiding officer, to notify the governor and the attorney general that a potential ground for removal exists. (j) Authorizes the council to establish criteria for the recognition and approval of community rehabilitation programs. Sec. 122.004. INFORMATION RELATING TO STANDARDS OF CONDUCT. Requires the presiding officer of the council or a designee to provide the members of the council information regarding their qualification for office under this chapter and their responsibilities under applicable laws relating to the standards of conduct for state officers. Sec. 122.005. MEMBER TRAINING. (a) Requires the member, before assuming council duties and being confirmed by the senate, to complete at least one course of the training program established under this section. (b) Requires a training program under this section to provide certain information to the council member. Sec. 122.006. SUNSET PROVISION. Redesignates existing Section 122.003. Makes conforming changes. Sec. 122.007. FAIR MARKET PRICE; PURCHASING PROCEDURES. Redesignates existing Section 122.004. (a) Requires the council to determine the fair market price of products and services manufactured and provided by persons with disabilities and offered for sale to the various agencies and departments of the state and its political subdivisions by a community rehabilitation program, rather than certain nonprofit agencies. (b) Requires a subcommittee composed of three council members appointed by the presiding officer, rather than the chairman, to review the data used to determine fair market price. Makes a conforming change. (c) Makes conforming changes. (d) Redesignates existing Subsection (e). Deletes rulemaking authority regarding a central nonprofit agency. Makes a nonsubstantive change. Sec. 122.008. PROCUREMENT AT DETERMINED PRICE. Redesignates existing Section 122.005. Makes conforming changes. Sec. 122.009. RECORDS. Redesignates existing Section 122.006. (a) Requires the records of the council and of a central nonprofit agency, to the extent that the records pertain specifically to state purchases of products and services of persons with disabilities, to be made available to the inspection of certain persons. Declares that a document that is available for inspection under this subsection is an open record for purposes of Chapter 552, Government Code. (b) Declares that the General Services Commission (commission), rather than the Texas Commission for the Blind, is the depository for all records concerning the council's operations. (c) Subjects the council to Chapter 552, Government Code. Sec. 122.010. COOPERATION WITH DEPARTMENT OF CRIMINAL JUSTICE. Redesignates existing Section 122.007. Authorizes the council to cooperate with the institutional division of the Texas Department of Criminal Justice for the purposes of this chapter. Makes conforming changes. Sec. 122.011. CORRELATION WITH RELATED FEDERAL PROGRAMS. Redesignates existing Section 122.008. Makes a conforming change. Sec. 122.012. New heading: DUTIES OF COMMISSION; INTERAGENCY COOPERATION. Redesignates existing Section 122.009. (a) Requires the commission to provide legal, clerical, administrative, and other necessary support to the council in accordance with legislative appropriation. (b) Makes conforming changes. (c) Prohibits the commission or a state agency from assuming the marketing or fiscal responsibility for the expense of marketing products and services under the program. Sec. 122.013. RULES. Redesignates existing Section 122.010. Authorizes the council to adopt rules for the implementation, extension, administration, or improvement of the program authorized by this chapter in accordance with Chapter 2001, Government Code. (b) Requires the commission to provide legal support to assist the council in adopting rules under this section. Deletes language regarding approval of the rules. Sec. 122.014. PRODUCT SPECIFICATIONS. Redesignates existing Section 122.011. Makes nonsubstantive changes. Sec. 122.015. DETERMINATIONS OF FAIR MARKET VALUE. Redesignates existing Section 122.012. (a) Requires the subcommittee established under Section 122.007(b) and the council, in determining the fair market value of products or services offered for sale under this chapter, to consider, among other factors, the actual cost of manufacturing the product or performing a service at a community rehabilitation program, rather than a sheltered workshop. Makes conforming changes. (b) Provides that the actual cost of manufacturing a product or performing a service consists of costs directly associated with a contract, and do not include a cost associated with an individual's preparation to perform the work activity. (c) Created from existing text. Sec. 122.016. EXCEPTIONS. Redesignates existing Section 122.013. Makes conforming and nonsubstantive changes. Sec. 122.017. PROCUREMENT FOR POLITICAL SUBDIVISIONS. Redesignates existing Section 122.014. Makes conforming changes. Sec. 122.018. POLITICAL SUBDIVISIONS EXCLUDED. Redesignates existing Section 122.015. Excludes certain political subdivisions from the mandatory application of this chapter. Provides that this chapter does not prohibit a political subdivision from acting as a willing buyer outside a bid system. Deletes language regarding the sale of products to a willing buyer. Sec. 122.019. New heading: CENTRAL NONPROFIT AGENCY. Redesignates existing Section 122.016. (a) Requires the council to contract with a central nonprofit agency to recruit and assist community rehabilitation programs in developing and submitting applications for the selection of suitable products and services, facilitate the distribution of orders among qualified community rehabilitation programs, manage and coordinate the day-to-day operation of the program, and promote increased supported employment opportunities for persons with disabilities. Deletes a provision regarding the submission of a budget request. (b) Authorizes the services of the central nonprofit agency to include marketing and marketing support services. Makes a conforming change. (c) Requires the council to review annually the services provided by a central nonprofit agency and the revenues required to accomplish the program to determine whether each agency's performance complies with contractual specifications. Requires the council to publish in the Texas Register by a certain date a request for comment on the services of a central nonprofit agency that participates in community rehabilitation programs. Makes a conforming change. (d) Requires the council, at least once a year during each two-year period, to review and negotiate the contract with a central nonprofit agency. Requires the council to publish notice of the proposed contract in the Texas Register by a certain date. Makes a conforming change. (e) Requires the maximum management fee rate charged by a central nonprofit agency for its services to the program to be computed as a percentage of the selling price of the product or the contract price of a service, to be included in the selling or contract price, to be paid at the time of sale, and to be approved by the council. (f) Requires a percentage of the management fee rate under Subsection (e) to be paid to and to be set by the council. Subjects the percentage to Section 122.023. Sec. 122.020. CONSUMER INFORMATION; COMPLAINTS. Redesignates existing Section 122.017. Makes conforming changes. Sec. 122.021. PUBLIC TESTIMONY AND ACCESS. (a) Requires the council to develop and implement policies that provide the public with a reasonable opportunity to appear before the council. (b) Requires the council to comply with federal and state laws related to program and facility accessibility, and to prepare and maintain a written plan that describes how a person who does not speak English can be provided reasonable access to the council's programs and services. Sec. 122.022. REPORTS. Redesignates existing Section 122.018. Requires the council to file with the governor and presiding officer of each house of the legislature an annual report that meets the reporting requirements applicable to financial reporting under the General Appropriations Act. Makes conforming changes. Sec. 122.023. COUNCIL FUNDS. Subjects all money paid to the council under this chapter to Chapter 404F, Government Code. Sec. 122.024. STRATEGIC PLAN; FINAL OPERATING PLAN. Requires the council to prepare an agency strategic plan and a final operating plan as required by Chapter 2054E, Government Code. Sec. 122.025. OPEN MEETINGS; ADMINISTRATIVE PROCEDURE. Redesignates existing Section 122.019. Makes conforming and nonsubstantive changes. SECTION 2. Changes the name of the Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons to the Texas Council on Purchasing from People with Disabilities. Declares that any reference in the law to the committee means the council. SECTION 3. (a) Requires the council, before using new stationery or other supplies printed with the name of the council, to use all supplies printed with the council's former name and that are in the council's possession on the effective date of this Act. (b) Provides that an appropriation made to the committee is available to the council under its name as adopted by this Act. SECTION 4. Sets forth guidelines and requirements for initial appointments to the council. SECTION 5. Requires the Texas Commission for the Blind, not later than January 31, 1996, to transfer to the General Services Commission records maintained by the Texas Commission for the Blind relating to the operations of the committee. SECTION 6. Authorizes an agreement between the committee and a central nonprofit agency to be extended until all of the appointments to the council have been made. SECTION 7. Effective date: September 1, 1995. SECTION 8. Emergency clause.