By Harris                                             H.B. No. 2188
       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.
    1-5        SECTION 1.  Title 132, Revised Statutes, is amended by adding
    1-6  Article 8920 to read as follows:
    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.
  12-13  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.