By Berlanga H.B. No. 1193
74R1665 JMM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of orthotists and prosthetists;
1-3 providing a civil penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 132, Revised Statutes, is amended by adding
1-6 Article 8920 to read as follows:
1-7 Art. 8920. REGULATION OF ORTHOTISTS AND PROSTHETISTS
1-8 Sec. 1. SHORT TITLE. This article may be cited as the
1-9 Orthotics and Prosthetics Act.
1-10 Sec. 2. DEFINITIONS. In this Act:
1-11 (1) "American Board for Certification" means the
1-12 American Board for Certification in Orthotics and Prosthetics, Inc.
1-13 (2) "Board" means the Texas Board of Orthotics and
1-14 Prosthetics.
1-15 (3) "Commission" means the Texas Rehabilitation
1-16 Commission.
1-17 (4) "Director" means the director of the Texas
1-18 Rehabilitation Commission.
1-19 (5) "Licensed orthotist" means a person licensed under
1-20 this Act who practices orthotics and represents the person to the
1-21 public by a title or description of services that includes the
1-22 terms "orthotics," "orthotists," "orthotic," or "C.O." or by a
1-23 similar title or description of services.
1-24 (6) "Licensed prosthetist" means a person licensed
2-1 under this Act who practices prosthetics and represents the person
2-2 to the public by a title or description of services that includes
2-3 the terms "prosthetics," "prosthetist," "prosthetic," or "C.P." or
2-4 by a similar title or description of services.
2-5 (7) "Licensed prosthetist-orthotist" means a person
2-6 licensed under this Act who practices both prosthetics and
2-7 orthotics and represents the person to the public by a title or
2-8 description of services that includes the terms
2-9 "prosthetics-orthotics," "prosthetist-orthotist,"
2-10 "prosthetic-orthotic," or "C.P.O." or by a similar title or
2-11 description of services.
2-12 (8) "Orthotics" means the science or practice of
2-13 measuring, designing, constructing, assembling, fitting, adjusting,
2-14 or servicing orthotic appliances under an order from a licensed
2-15 physician, chiropractor, or podiatrist for the correction or
2-16 alleviation of musculoskeletal diseases, injuries, or deformities.
2-17 (9) "Person" means an individual, corporation,
2-18 partnership, association, or other organization.
2-19 (10) "Prosthesis" means an artificial device that is
2-20 not surgically implanted that is used to replace a missing limb,
2-21 appendage, or other external human body part, including an
2-22 artificial limb, hand, or foot. The term does not include an
2-23 artificial eye, ear, finger, or toe, a dental appliance, a cosmetic
2-24 device, including an artificial breast, eyelash, or wig, or other
2-25 device that does not have a significantly detrimental impact on the
2-26 musculoskeletal functions of the body.
2-27 (11) "Prosthetics" means the science or practice of
3-1 measuring, designing, constructing, assembling, fitting, adjusting,
3-2 or servicing a prosthesis under an order from a licensed physician
3-3 or podiatrist.
3-4 Sec. 3. BOARD. (a) The Texas Board of Orthotics and
3-5 Prosthetics is established as a part of the commission and shall
3-6 perform its duties as a board with the commission.
3-7 (b) The board consists of six members appointed by the
3-8 governor with the advice and consent of the senate. Appointments
3-9 to the board shall be made without regard to the race, color,
3-10 disability, sex, religion, age, or national origin of the
3-11 appointees.
3-12 (c) Members of the board are appointed for staggered
3-13 six-year terms, with two members' terms expiring on February 1 of
3-14 each odd-numbered year.
3-15 (d) One member of the board must be a licensed orthotist
3-16 certified by the American Board for Certification, be a resident of
3-17 this state, and have practiced orthotics for the three years
3-18 preceding the date of appointment. One member of the board must be
3-19 a licensed prosthetist certified by the American Board for
3-20 Certification, be a resident of this state, and have practiced as a
3-21 prosthetist for the three years preceding the date of appointment.
3-22 One member of the board must be a licensed orthotist-prosthetist,
3-23 be a resident of this state, and have practiced orthotics and
3-24 prosthetics for the three years preceding the date of appointment.
3-25 One member of the board must be a representative of the public who
3-26 uses an orthotic appliance. One member of the board must be a
3-27 representative of the public who uses a prosthesis. One member of
4-1 the board must be a representative of the public who does not use
4-2 an orthotic appliance or prosthesis.
4-3 (e) A vacancy on the board shall be filled by appointment by
4-4 the governor of a person who has the appropriate qualifications.
4-5 The appointed person serves for the remainder of the term.
4-6 (f) A member of the board is not liable for damages in a
4-7 civil action for any act performed in good faith in the execution
4-8 of the member's duties.
4-9 (g) The board is subject to Chapter 325, Government Code
4-10 (Texas Sunset Act). Unless continued in existence as provided by
4-11 that chapter, the board is abolished and this Act expires
4-12 September 1, 2007.
4-13 Sec. 4. REMOVAL FROM BOARD. (a) It is ground for removal
4-14 from the board if a member:
4-15 (1) does not have at the time of appointment the
4-16 qualifications required for appointment to the board;
4-17 (2) does not maintain during service on the board the
4-18 qualifications required for appointment to the board;
4-19 (3) violates a prohibition established by this Act;
4-20 (4) cannot discharge the member's duties for a
4-21 substantial part of the term for which the member is appointed
4-22 because of illness or disability; or
4-23 (5) is absent from more than half of the regularly
4-24 scheduled board meetings that the member is eligible to attend
4-25 during a calendar year unless the absence is excused by majority
4-26 vote of the board.
4-27 (b) The validity of an action of the board is not affected
5-1 by the fact that the action was taken when a ground for removal of
5-2 a member of the board existed.
5-3 (c) If the executive secretary has knowledge that a
5-4 potential ground for removal exists, the executive secretary shall
5-5 notify the presiding officer of the board of the ground. The
5-6 presiding officer shall then notify the governor that a potential
5-7 ground for removal exists.
5-8 Sec. 5. BOARD POWERS AND DUTIES. (a) The board shall
5-9 approve applicants for licenses at least once each year at
5-10 reasonable times and places designated by the board.
5-11 (b) The board may collect fees for licenses, license
5-12 renewals, examinations, and other administrative expenses. If the
5-13 General Appropriations Act does not set the amount of those fees,
5-14 the board shall set the fees in amounts reasonable and necessary
5-15 for the administration and implementation of this Act.
5-16 (c) The board shall approve the examination required for a
5-17 license under this Act. The examination must be offered at least
5-18 once each year.
5-19 (d) The board may:
5-20 (1) investigate complaints;
5-21 (2) issue, suspend, deny, and revoke licenses;
5-22 (3) reprimand license holders and place license
5-23 holders on probation;
5-24 (4) issue subpoenas; and
5-25 (5) hold hearings.
5-26 (e) The board shall keep an information file about each
5-27 complaint that is filed with the board relating to a license holder
6-1 or an entity regulated by the board. If a written complaint that
6-2 the board has authority to resolve is filed with the board, the
6-3 board, at least as frequently as quarterly and until the final
6-4 disposition of the complaint, shall notify the parties to the
6-5 complaint of the status of the complaint unless the notice would
6-6 jeopardize an undercover investigation.
6-7 (f) The board shall propose rules consistent with this Act
6-8 to carry out its duties in administering this Act and submit the
6-9 proposed rules to the attorney general for review. The board
6-10 shall adopt rules consistent with the advice of the attorney
6-11 general. In adopting its rules, the board shall consider the
6-12 applicable policies and procedures of the commission.
6-13 (g) The director, with the advice of the board, shall
6-14 appoint an executive director to administer this Act. The board
6-15 may use personnel, facilities, furniture, equipment, and other
6-16 items supplied by the commission to administer this Act.
6-17 (h) The executive director or the executive director's
6-18 designee shall develop an intra-agency career ladder program. The
6-19 program shall require intra-agency posting of all non-entry level
6-20 positions concurrently with any public posting.
6-21 (i) The executive director or the executive director's
6-22 designee shall develop a system of annual performance evaluation
6-23 based on measurable job tasks. All merit pay for board employees
6-24 must be based on the system established under this subsection.
6-25 (j) The board shall prepare information of consumer interest
6-26 describing the regulatory functions of the board and legal rights
6-27 of consumers as provided by this Act.
7-1 (k) The board shall assist legal authorities in the
7-2 prosecution of any person violating this Act.
7-3 (l) The board shall prepare or approve continuing education
7-4 programs for license holders and shall adopt rules that require a
7-5 license holder to participate in an approved continuing education
7-6 program to renew a license issued under this Act.
7-7 (m) The board shall develop and implement policies that
7-8 clearly define the respective responsibilities of the governing
7-9 body of the board and the staff of the board.
7-10 Sec. 6. PUBLIC INFORMATION. (a) The board shall prepare
7-11 information of public interest describing the functions of the
7-12 board and describing the procedures by which complaints are filed
7-13 with and resolved by the board. The board shall make the
7-14 information available to the general public and appropriate state
7-15 agencies.
7-16 (b) The board by rule shall establish methods by which
7-17 consumers and service recipients are notified of the name, mailing
7-18 address, and telephone number of the board for the purpose of
7-19 directing complaints to the board. The board may provide for that
7-20 notification:
7-21 (1) on each registration form, application, or written
7-22 contract for services of an individual or entity regulated by the
7-23 board;
7-24 (2) on a sign prominently displayed in the place of
7-25 business of each individual or entity regulated by the board; or
7-26 (3) in a bill for service provided by an individual or
7-27 entity regulated by the board.
8-1 (c) The board shall list along with its regular telephone
8-2 number the toll-free telephone number that may be called to present
8-3 a complaint about a health professional if the toll-free number is
8-4 established under other state law.
8-5 Sec. 7. Public Participation in Board Hearings. The board
8-6 shall develop and implement policies that provide the public with a
8-7 reasonable opportunity to appear before the board and to speak on
8-8 any issue under the jurisdiction of the board.
8-9 Sec. 8. Program Accessibility. The board shall prepare and
8-10 maintain a written plan that describes how a person who does not
8-11 speak English can be provided reasonable access to the board's
8-12 programs. The board shall also comply with federal and state laws
8-13 for program and facility accessibility.
8-14 Sec. 9. Training; Standards-of-Conduct Information. Each
8-15 board member shall comply with the board member training
8-16 requirements established by any other state agency that is given
8-17 authority to establish the requirements for the board.
8-18 Sec. 10. Open Meetings and Administrative Procedure. The
8-19 board is subject to Chapters 551 and 2001, Government Code.
8-20 Sec. 11. ORGANIZATION OF BOARD. (a) The members of the
8-21 board shall elect from the membership of the board a presiding
8-22 officer, secretary, and other officers required for the conduct of
8-23 business. Special meetings of the board shall be called by the
8-24 presiding officer or on the written request of any three members.
8-25 The board may adopt rules necessary to govern its proceedings.
8-26 (b) The secretary or the executive director shall keep a
8-27 record of each meeting of the board and maintain a register
9-1 containing the names of all persons holding licenses under this
9-2 Act. The record and register shall be open at all times to public
9-3 inspection. On March 1 of each year, the executive director shall
9-4 send an official copy of the register of license holders to the
9-5 secretary of state for permanent record. A certified copy of the
9-6 register is admissible as evidence in any court of this state.
9-7 Sec. 12. COMPENSATION. A member of the board is entitled to
9-8 compensation and reimbursement of the member's travel expenses as
9-9 provided by the General Appropriations Act.
9-10 Sec. 13. Effect of Lobbying Activity. A person may not
9-11 serve as a member of the board or act as the general counsel to the
9-12 board if the person is required to register as a lobbyist under
9-13 Chapter 305, Government Code, because of the person's activities
9-14 for compensation on behalf of a profession related to the operation
9-15 of the board.
9-16 Sec. 14. Public Membership Restriction. A person is not
9-17 eligible for appointment by the governor as a public member of the
9-18 board if the person or the person's spouse:
9-19 (1) is registered, certified, or licensed by an
9-20 occupational regulatory agency in the field of health care;
9-21 (2) is employed by or participates in the management
9-22 of a business entity or other organization regulated by the board
9-23 or receiving funds from the board;
9-24 (3) owns or controls, directly or indirectly, more
9-25 than a 10 percent interest in a business entity or other
9-26 organization regulated by the board or receiving funds from the
9-27 board; or
10-1 (4) uses or receives a substantial amount of tangible
10-2 goods, services, or funds from the board, other than compensation
10-3 or reimbursement authorized by law for board membership,
10-4 attendance, or expenses.
10-5 Sec. 15. Conflict of Interest Restrictions. (a) An
10-6 officer, employee, or paid consultant of a Texas trade association
10-7 in the field of health care may not be a member or employee of the
10-8 board who is exempt from the state's position classification plan
10-9 or is compensated at or above the amount prescribed by the General
10-10 Appropriations Act for step 1, salary group 17, of the position
10-11 classification salary schedule.
10-12 (b) A person who is the spouse of an officer, manager, or
10-13 paid consultant of a Texas trade association in the field of health
10-14 care may not be a member of the board and may not be an employee of
10-15 the board who is exempt from the state's position classification
10-16 plan or is compensated at or above the amount prescribed by the
10-17 General Appropriations Act for step 1, salary group 17, of the
10-18 position classification salary schedule.
10-19 (c) For the purposes of this section, a Texas trade
10-20 association is a nonprofit, cooperative, and voluntarily joined
10-21 association of business or professional competitors in this state
10-22 designed to assist its members and its industry or profession in
10-23 dealing with mutual business or professional problems and in
10-24 promoting their common interest.
10-25 Sec. 16. AUDIT. The financial transactions of the board are
10-26 subject to audit by the state auditor in accordance with Chapter
10-27 321, Government Code.
11-1 Sec. 17. REPORT TO GOVERNOR AND LEGISLATURE. During January
11-2 of each year, the board shall file with the governor and the
11-3 presiding officer of each house of the legislature a complete and
11-4 detailed written report accounting for all funds received and
11-5 disbursed by the board during the preceding year.
11-6 Sec. 18. Equal Employment Opportunity Policies. (a) The
11-7 executive director or the executive director's designee shall
11-8 prepare and maintain a written policy statement to ensure
11-9 implementation of a program of equal employment opportunity under
11-10 which all personnel transactions are made without regard to race,
11-11 color, disability, sex, religion, age, or national origin. The
11-12 policy statement must include:
11-13 (1) personnel policies, including policies relating to
11-14 recruitment, evaluation, selection, application, training, and
11-15 promotion of personnel that are in compliance with Chapter 21,
11-16 Labor Code;
11-17 (2) a comprehensive analysis of the board workforce
11-18 that meets federal and state guidelines;
11-19 (3) procedures by which a determination can be made of
11-20 significant underutilization in the board workforce of all persons
11-21 for whom federal or state guidelines encourage a more equitable
11-22 balance; and
11-23 (4) reasonable methods to appropriately address those
11-24 areas of underutilization.
11-25 (b) A policy statement prepared under Subsection (a) of this
11-26 section must cover an annual period, be updated annually, be
11-27 reviewed by the Commission on Human Rights for compliance with
12-1 Subsection (a)(1) of this section, and be filed with the governor's
12-2 office.
12-3 (c) The governor's office shall deliver a biennial report to
12-4 the legislature based on the information received under Subsection
12-5 (b) of this section. The report may be made separately or as part
12-6 of other biennial reports to the legislature.
12-7 Sec. 19. NOTICE OF STANDARDS OF CONDUCT. The board shall
12-8 provide to its members and employees, as often as necessary,
12-9 information regarding their qualifications for office or employment
12-10 under this Act and their responsibilities under applicable laws
12-11 relating to standards of conduct for state officers or employees.
12-12 Sec. 20. APPROPRIATIONS TO TEXAS REHABILITATION COMMISSION.
12-13 The commission shall receive and account for funds derived under
12-14 this Act. The commission shall deposit all funds collected under
12-15 this Act to the credit of the general revenue fund.
12-16 Sec. 21. EXEMPTIONS. (a) A holder of a license issued by
12-17 another state agency that provides health-care services within the
12-18 scope of the applicable licensing act is not required to hold a
12-19 license under this Act.
12-20 (b) This Act does not apply to the activities and services
12-21 of a person acting as a student, fellow, or trainee in orthotics or
12-22 prosthetics pursuing a course of study at an accredited college or
12-23 university, or working in a recognized training center or research
12-24 facility, if these activities and services constitute a part of the
12-25 person's course of study under a supervisor licensed under this
12-26 Act.
12-27 Sec. 22. LICENSE REQUIREMENTS. (a) To obtain a license to
13-1 practice orthotics or prosthetics in this state, an individual must
13-2 file a written application on a form provided by the board, showing
13-3 that the applicant has:
13-4 (1) completed the formal training, including any hours
13-5 of classroom education and clinical practice, in any area of study
13-6 the board by rule determines to be necessary and appropriate;
13-7 (2) completed a clinical residency in the professional
13-8 area for which license is sought that complies with the standards,
13-9 guidelines, or procedures established by the board for a clinical
13-10 residency offered in this state or in another state; and
13-11 (3) passed all written, practical, and oral
13-12 examinations approved and required by the board.
13-13 (b) The requirements for a license established by the board
13-14 must equal or exceed the standards required by the American Board
13-15 for Certification.
13-16 Sec. 23. LICENSE ISSUANCE. (a) The board shall issue a
13-17 license to practice orthotics or prosthetics to an applicant who
13-18 meets the qualifications established under this Act. A license is
13-19 valid for two years from the date of issuance and may be renewed on
13-20 expiration. The board may issue a license under this Act only to
13-21 an individual.
13-22 (b) A license may be granted in either orthotics or
13-23 prosthetics. An individual may be licensed in both orthotics and
13-24 prosthetics if that person meets the requirements established by
13-25 the board.
13-26 Sec. 24. TEMPORARY LICENSE. (a) The board may issue a
13-27 temporary license to an individual who has:
14-1 (1) recently become a resident of this state;
14-2 (2) applied for licensing as an orthotist,
14-3 prosthetist, or both; and
14-4 (3) been licensed by the state of former residence or
14-5 is currently certified by the American Board for Certification in
14-6 the discipline for which the individual applies.
14-7 (b) A temporary license is valid for one year from the date
14-8 of issuance. A temporary license may be renewed for up to one
14-9 additional year if an applicant presents to the board sufficient
14-10 evidence of good cause for renewal.
14-11 Sec. 25. STUDENT REGISTRATION. (a) The board may issue a
14-12 student registration certificate to a person who has a bachelor's
14-13 degree from a college or university accredited by the National
14-14 Commission on Orthotic and Prosthetic Education and who is working
14-15 toward fulfillment of the requirements for licensing as an
14-16 orthotist, prosthetist, or prosthetist-orthotist.
14-17 (b) A student registrant may work only under the direct and
14-18 immediate supervision of a licensed orthotist or prosthetist, or
14-19 person licensed as a prosthetist-orthotist, who is responsible for
14-20 the acts of the student registrant.
14-21 (c) A student registration certificate is valid for two
14-22 years from the date of issuance and may be renewed once for an
14-23 additional two years.
14-24 Sec. 26. WRITTEN EXAMINATION EXEMPTION. The board may
14-25 accept as a substitute for the written examination requirement
14-26 proof that an applicant for a license holds a current license in a
14-27 state that has standards the board finds essentially equivalent to
15-1 the requirements of this state.
15-2 Sec. 27. UNAUTHORIZED PRACTICE PROHIBITED. A person may not
15-3 practice, attempt to practice, or hold the person out as able to
15-4 practice orthotics or prosthetics in this state unless that person
15-5 is licensed under this Act.
15-6 Sec. 28. CONTINUING EDUCATION. (a) An applicant for
15-7 license renewal shall submit to the board evidence of satisfactory
15-8 completion of the continuing education requirements adopted by
15-9 board rule.
15-10 (b) The board shall notify each license holder of the
15-11 holder's failure to comply with the board's continuing education
15-12 requirements and shall notify the license holder that if the holder
15-13 does not obtain the required continuing education before the
15-14 expiration of three months after the date the notice was given, the
15-15 board may take any action authorized by this Act concerning the
15-16 suspension or revocation of the holder's license.
15-17 Sec. 29. DISCIPLINARY PROVISIONS. (a) The board may, on
15-18 notice and opportunity for a hearing, revoke, suspend, or refuse to
15-19 renew a license, temporary license, or student registration
15-20 certificate issued to a person under this Act, on finding:
15-21 (1) that the license or certificate was obtained by
15-22 fraud, misrepresentation, or concealment of a material fact;
15-23 (2) that the person engaged in fraud or deceit in
15-24 connection with services provided by the person;
15-25 (3) that the person engaged in unprofessional or
15-26 unethical conduct;
15-27 (4) that the person engaged in gross negligence or
16-1 malpractice; or
16-2 (5) that the person violated this Act or a rule
16-3 adopted under this Act.
16-4 (b) A license or student registration certificate revoked
16-5 under Subsection (a) may be reinstated after one year from the date
16-6 of the revocation by the board on whatever terms the board
16-7 determines to be necessary.
16-8 Sec. 30. CIVIL PENALTY. (a) A person who violates this Act
16-9 is subject to a civil penalty of $200 for the first violation and
16-10 $500 for each subsequent violation. At the request of the board,
16-11 the attorney general shall bring an action in the name of the state
16-12 to collect a civil penalty under this section.
16-13 (b) Each day a violation of Section 27 of this Act continues
16-14 is a separate violation for the purposes of this section.
16-15 SECTION 2. (a) In making the initial appointments to the
16-16 Texas Board of Orthotics and Prosthetics, the governor shall, not
16-17 later than October 1, 1995, appoint:
16-18 (1) two members for terms expiring February 1, 1997;
16-19 (2) two members for terms expiring February 1, 1999;
16-20 and
16-21 (3) two members for terms expiring February 1, 2001.
16-22 (b) A member appointed under this section who is required to
16-23 be licensed under this Act must obtain the required license not
16-24 later than February 1, 1997.
16-25 (c) The board shall adopt rules under Article 8920, Revised
16-26 Statutes, as added by this Act, not later than January 1, 1996.
16-27 SECTION 3. (a) Except as provided by Subsection (b) of this
17-1 section, this Act takes effect September 1, 1995.
17-2 (b) Section 27 of Article 8920, Revised Statutes, as added
17-3 by this Act, takes effect March 1, 1996.
17-4 SECTION 4. The importance of this legislation and the
17-5 crowded condition of the calendars in both houses create an
17-6 emergency and an imperative public necessity that the
17-7 constitutional rule requiring bills to be read on three several
17-8 days in each house be suspended, and this rule is hereby suspended.