BG H.B. 2119 75(R)BILL ANALYSIS
PUBLIC HEALTH
H.B. 2119
By: Bosse
4-9-97
Committee Report (Amended)
BACKGROUND
The 69th Legislature created the Texas Commission on Alcohol and Drug
Abuse (TCADA) in 1985 by merging the Drug Abuse Prevention Division of the
Texas Department of Community Affairs with the Texas Commission on
Alcoholism. TCADA is responsible for developing, funding and evaluating
chemical dependency prevention, intervention, and treatment programs. In
addition, the agency licenses all chemical dependency facilities and
counselors. TCADA carries out its programs and functions through three
main divisions--Program Services, Program Compliance, and Finance and
Administration. In fiscal year 1996, TCADA had a budget of $127 million
and 231 employees.
TCADA is subject to the Sunset Act and, unless continued by the
Legislature, it will be abolished on September 1, 1997. To provide a
fuller context for the Sunset legislation, it is important to note that
TCADA was placed under conservatorship in 1995 in response to reports of
serious fiscal mismanagement by the agency and its contractors. After the
conservators addressed the most serious problems, the Governor appointed a
new Commission in February of 1996. The Sunset commission focused
primarily on the agency's service delivery planning, funding, and provider
payment systems, thus building on the improvements made by the
conservators.
The Sunset Commission's review indicated that TCADA's service delivery
system has grown incrementally over time, and as a result, lacks a clear,
strategic framework. The Sunset review also found that TCADA's funding
system does not ensure that a range of accessible treatment services are
available to those most in need. Additionally, the provider selection
procedures favored cost over quality consideration, and thus did not
necessarily result in best value services for the state. In these areas,
TCADA's enabling statute does not give the agency clear direction. As a
result of these findings, the Sunset Advisory Commission recommended
continuation and several statutory modifications that are contained in
this legislation.
PURPOSE
HB 2119 extends TCADA's enabling statute for 12 more years and provides
the statutory modifications recommended by the Sunset Advisory Commission.
This bill aims to improve agency direction, and accountability, and thus
maximize availability and access to a range of chemical dependency
treatment services of the highest quality at the best price. It ensures
proper assessment of contracts and performance measurements in the
expectation that a comprehensive statewide plan for the delivery of
alcohol and drug abuse services will be developed and implemented.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is expressly
granted to TCADA in SECTION 7 (Section 461.0141(a) and (d), Health and
Safety Code) and in SECTION 17 (Section 106.115(a), Alcoholic Beverage
Code). Additionally, TCADA rules under Section 2001.004, Government Code,
are referenced in SECTION 11 (Sec. 464.015(c) Health and Safety Code) and
in SECTION 14 (Sec. 17(b), Article 4512o, Vernon's Texas Civil Statutes).
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 461.003(c), Health and Safety Code. Updates
standard language developed by the Sunset Commission regarding
qualifications for appointment to the commission by deleting the word
"handicap" and replacing it with "disability."
SECTION 2. Amends Sections 461.004 and 461.006, Health and Safety Code as
follows:
Sec. 461.004. Updates TCADA's Sunset date to September 1, 2009, which
provides for the usual 12-year review.
Sec. 461.006. Establishes that TCADA members, who now serve two-year
terms, serve staggered six-year terms as specified..
SECTION 3. Amends Section 461.011, Health and Safety Code, as follows:
Subsection (b) adds language requiring that the career ladder program
address opportunities for mobility and advancement for employees. Removes
the term "nonentry" in reference to positions concurrently posted.
Subsection (c) adds language requiring that annual performance evaluations
be based on documented employee performance, rather than on measurable job
tasks.
Subsections (e)-(g) Updates standard language developed by the Sunset
Commission regarding the equal employment opportunity program. Deletes
the word "handicap" and replaces it with "disability." Adds language
requiring that personnel policies be in compliance with the requirements
of Chapter 21, Labor Code relating to employment discrimination. Deletes
"significant underutilization" and replaces it with "underuse" in two
places. Requires that the equal employment opportunity policy statement
be reviewed by the Texas Commission on Human Rights for compliance with
this subsection. Replaces "governor" with "governor's office" and makes
conforming and nonsubstantive language changes.
SECTION 4. Amends Section 461.014, Health and Safety Code, as follows:.
Subsection (b) Updates standard language developed by the Sunset
Commission to require that TCADA funds be managed in accordance with the
State Funds Reform Act.
Subsection (c) Updates standard language developed by the Sunset
Commission requiring the agency to prepare an annual financial report that
meets the reporting requirements in the General Appropriations Act.
SECTION 5. Amends Section 461.015, Health and Safety Code as follows:
Subsection (c) Requires TCADA to keep a file about each received written
complaint that they have authority to resolve. Requires TCADA to provide
policies and procedures pertaining to complaint investigation and
resolution to the parties complaining and the parties complained about, in
addition to notifying them regarding the complaint status as specified.
Removes language that limited the commission's responsibilities to only
those complaints relating to a licensee or entity regulated by the
commission.
Subsection (d) provides a list of specified details that must be included
and kept in the information about each complaint filed with TCADA.
Removes language regarding a licensee or entity funded or regulated by the
commission.
SECTION 6. Amends Section 461.012, Health and Safety Code, as follows:
Subsection (a) makes conforming changes.
Subsection (b) removes reference to the 24 state planning regions and
replaces it with a reference to regions established under Section 531.024,
Government Code.
Subsection (d) is added to require TCADA to comply with state and federal
laws related to program and facility accessibility.
Subsection (e) is added to require the executive director to prepare and
maintain a written plan that describes how non-English speaking persons
can be provided reasonable access to TCADA's programs and services.
SECTION 7. Amends Chapter 461, Health and Safety Code, by adding the
following sections:
Sec. 461.0051. COMMISSION MEMBER TRAINING.
Subsection (a) Stipulates that TCADA members must complete at least one
course of a training program established under this section before
assuming their duties and being confirmed by the senate.
Subsection (b) establishes the informational content required in the
training program as specified.
Sec. 461.0124. STATEWIDE SERVICE DELIVERY PLAN.
Subsection (a) requires TCADA to develop and adopt a statewide service
delivery plan. Requires TCADA to update the plan by February 1 of each
evennumbered year. Delineates specific elements that must be included in
the plan.
Subsection (b) requires TCADA to gather necessary information for
developing the plan through methods designed to include local, regional,
and statewide perspectives.
Subsection (c) requires TCADA to analyze the implementation costs as
specified. Requires TCADA to use that analysis to maximize service
delivery efficiency under the final plan..
Sec. 461.0125. CLIENT SERVICE CONTRACT STANDARDS. Requires TCADA to
include clearly defined contract goals, outputs, and outcomes; clearly
defined sanctions; and clearly specified accounting, reporting, and
auditing requirements in each contract with chemical dependency service
providers.
Sec. 461.0126. CONTRACT MONITORING. Requires that TCADA to establish a
formal program to monitor service provider compliance with financial and
performance contract requirements as specified. Specifies that TCADA must
obtain and evaluate program costs to ensure that all costs are necessary
to achieve program objectives.
Sec. 461.027. TECHNICAL ASSISTANCE PROGRAM. Requires that TCADA adopt a
technical assistance program that allows people to request assistance
through a single office and receive a response from TCADA within an
explicit time frame. The technical assistance program must be clearly
separate from TCADA's contract monitoring program.
Sec. 461.0141. SERVICES FUNDING
Subsection (a) requires TCADA to adopt, by rule, a chemical dependency
service provider funding system using competitive and noncompetitive
procedures that will maximize the range and accessibility of treatment
services within a region. The system must include an element of local
public participation for making regional funding decisions and
recommendations.
Subsection (b) establishes that the system must require that service
contract awards are based on TCADA's determination of which bid provides
the best value.
Subsection (c) requires TCADA to consider certain factors, as specified,
when determining the best value bid.
Subsection (d) provides that rules adopted under this section must set
out TCADA's provider selection processes as specified.
Sec. 461.0142. FUNDING POLICY MANUAL. Requires that TCADA publish and
update annually a funding policy manual as specified.
Sec. 461.0143. UNIT RATE REIMBURSEMENT.
Subsection (a) requires that TCADA study the use of a unit rate
reimbursement system to purchase and pay for chemical dependency treatment
services.
Subsection (b) requires that TCADA adopt such a system if the study shows
it would result in the highest quality services at the best price and
lowest administrative cost. If a unit rate system were adopted, it would
have to include competitive procurement, rate and performance monitoring,
and safeguards to prevent unallowable expenditures and contain costs.
Subsection (c) allows TCADA to use the unit rate system for prevention
services when appropriate.
Subsection (d) defines "unit rate reimbursement" as used in this section.
SECTION 8. Amends Sections 464.003 and 464.008, Health and Safety Code,
as follows:
Sec. 464.003. Replaces Texas Mental Health and Mental Retardation with
Texas Department of Health (TDH) as the licensing agency of exempt
facilities.
Sec. 464.008. Updates language to provide that fees collected under this
subchapter are subject to Subchapter F, Chapter 404, Government Code, and
deletes reference to the alcohol and drug abuse treatment licensure fund.
SECTION 9. Amends Section 464.014, Health and Safety Code, as follows:
Sec. 464.014. (a) specifies that disciplinary decisions regarding
chemical dependency treatment facilities rest with TCADA rather than the
executive director. Revises the previous permissive language to require
TCADA to make use of a range of specified penalties, including placing a
person whose license has been suspended on probation or reprimanding the
license holder for violations as specified. Makes conforming changes.
Subsection (b) allows TCADA to establish conditions for completion or
violation of the probation if a license suspension is probated.
Subsection (c) adds "probation" to the list of possible disciplinary
actions which take effect as specified. Makes conforming changes and omits
language concerning TCADA's reactions to appeal requests, the rights and
procedures for appeal and judicial review of appeal hearings. Retains
language allowing TCADA to restrict attendance at appeal hearings as
specified and retains the stipulation that someone whose license is
suspended or revoked may not admit new clients.
SECTION 10. Amends Section 464.017(f), Health and Safety Code, by adding
the word "account" as clarification that the alcohol and drug abuse
treatment licensure fund is an account rather than a separate fund.
SECTION 11. Amends Subchapter A, Chapter 464, Health and Safety Code, by
adding Section 464.0145 as follows:
Sec. 464.0145. DISCIPLINARY ACTION HEARING.
Subsection (a) establishes that a person is entitled to a hearing
conducted by the State Office of Administrative Hearings if TCADA proposes
to take action against their license.
Subsection ( b) provides that procedures for disciplinary action are
governed by the administrative procedure law, Chapter 2001, Government
Code.
Subsection (c) prohibits TCADA's rule of practice applicable to
disciplinary action proceedings from conflicting with rules adopted by the
State Office of Administrative Hearings.
SECTION 12. Amends Section 10(b), Chapter 635, Acts of the 72nd
Legislature, Regular Session, 1991 (Article 4510o, Vernon's Texas Civil
Statutes) to omit the requirement that an applicant for a chemical
dependency counselor license be a citizen of the state of Texas. Replaces
the word "commissioner" with the term "test administrator" in reference to
the requirement about submitting a case presentation. Makes conforming
changes.
SECTION 13. Amends Section 13, Chapter 635, Acts of the 72nd Legislature,
Regular Session, 1991 (Article 4510o, Vernon's Texas Civil Statutes) as
follows:
Subsection (b) revises and conforms language which establishes that "at
least 30 days before the expiration of a person's" license, TCADA is
required to "send written notice" as specified.
Subsection (c) is reworded to provide that a person may renew an unexpired
license, as specified, if that person is otherwise eligible for renewal.
Prohibits a person whose license has expired from engaging in activities
that require a license until it has been renewed as specified.
Subsection (d) revises language concerning renewal fees to allow the
person whose license has expired for 90 days or less to pay one and
one-half times the required fee as specified. Makes conforming change.
Subsection (e) replaces "one year" for "two years" as the cut off time
period before which an expired license may be renewed at the next fee
level amount. Adds language to set that amount at two times the required
renewal fee. Makes conforming change.
Subsection (f) is added to clarify that if a license has been expired for
one year or more, it can not be renewed. Allows for the person to obtain a
new license through application procedures and reexamination as specified.
Subsection (g) is added to allow a person who was licensed in this state,
moved to another state and currently licensed and in practice there, as
specified, to renew an expired license without reexamination and pay a fee
as specified. Makes conforming changes.
SECTION 14. Amends Sections 15, 16, and 17, Chapter 635, Acts of the 72nd
Legislature, Regular Session, 1991 (Article 4510o, Vernon's Texas Civil
Statutes), as follows:
Sec. 15. Updates standard language developed by the Sunset Commission
that requires TCADA to recognize, prepare, or administer continuing
education programs for licensed chemical dependency counselors. Makes
participation in the continuing education programs mandatory for
licensure.
Sec. 16 (a). Updates standard language developed by the Sunset Commission
and changes permissive language to require TCADA to use a full range of
penalties, such as reprimand, suspension, or revocation, for violations
committed or for direct or indirect conduct as specified. Makes
conforming changes.
Subsection (b) allows TCADA to require the license holder to report
regularly as specified, to limit practice as prescribed, or to continue or
review professional education, as specified, if a license suspension is
probated.
Sec. 17(a) adds language to clarify that it is with TCADA that a
complaint alleging a violation of this Act may be filed. Specifies that
the complaint must be in writing and under oath.
Subsection (b). removes language regarding TCADA's ability to order the
revocation or suspension of a license be probated, determine the length of
probation, and rescind the probation and enforce the TCADA's original
action. Updates standard language developed by the Sunset Commission to
entitle licensees to a hearing conducted by the State Office of
Administrative Hearings before any sanction may be taken against their
license. Specifies that procedures for disciplinary action are governed
by the administrative procedure law and that rules of practice adopted by
TCADA regarding proceedings for a disciplinary action may not conflict
with the rules of the State Office of Administrative Hearings. Makes
conforming changes.
Subsection (c) revises language concerning the requirement that TCADA keep
files on complaints filed to specify that a file must be kept on those
that TCADA has authority to resolve. Requires TCADA to provide policies
and procedures pertaining to complaint investigation and resolution to the
parties complaining and complained about. Requires TCADA to notify the
parties regarding the status of the complaint at least quarterly until
disposition unless it would jeopardize an undercover investigation.
Subsection (d) requires TCADA to keep information as specified about each
complaint filed. Makes conforming changes.
SECTION 15. Amends Section 19, Chapter 635, Acts of the 72nd Legislature,
Regular Session, 1991 (Article 4510o, Vernon's Texas Civil Statutes) to
rename the licensed chemical dependency counselors fund to the licensed
chemical dependency counselors fund account so as to conform with recent
fund consolidation efforts.
SECTION 16. Adds Sections 10A and 18A. Chapter 635, Acts of the 72nd
Legislature, Regular Session, 1991 (Article 4510o, Vernon's Texas Civil
Statutes) as follows:
Sec. 10A. PROVISIONAL LICENSE. (a) allows TCADA to issue provisional
licenses to applicants who are currently licensed in good standing in
another state as specified.
Subsection (b) allows TCADA to waive requirement of sponsorship if it
poses a hardship to the applicant.
Subsection (c) provides that the provisional license is valid until TCADA
approves or denies the holder's license application.
Subsection (d) requires TCADA to issue a license if the provisional
license holder under Section 10. Allows TCADA to waive certain prescribed
requirements as specified.
Subsection (e) provides that TCADA must complete the license application
process in no longer than 180 days after issuance of the provisional
license. Allows for extension of the 180-day limit if necessary
information has not been received.
Subsection (f) allows TCADA to establish a fee for a provisional license
in an amount reasonable and necessary to cover the cost of issuing the
license.
Sec. 18A. ADMINISTRATIVE PENALTY. (a) allows TCADA to assess an
administrative penalty for violations of its rules and regulations
pertaining to licensed chemical dependency counselors.
Subsection (b) establishes that the penalty may not exceed $1,000 for each
violation and that each day of a continuing violation constitutes a
separate violation..
Subsection (c) requires TCADA to consider circumstances, as specified,
when determining the penalty amount.
Subsection (d) provides that proceedings for the assessment of an
administrative penalty under this Act are subject to Chapter 2001,
Government Code.
Subsection (e) requires TCADA to give written notice, as specified, to the
alleged violator, if after investigation TCADA determines that a violation
has occurred.
Subsection (f) allows the notified person to either accept the
determination made, including the proposed penalty, or make a written
request for a hearing within 20 days after receipt of the notice.
Subsection (g) requires the executive director or designee to issue
determination approval and penalty payment orders if the notified person
accepts TCADA's determination.
Subsection (h) requires TCADA to set a hearing; give written notice of the
hearing and designate a hearing examiner if a hearing is timely requested
under subsection (e).
Subsection (i) requires the hearing examiner to make findings of fact and
conclusions of law and promptly issue a decision proposal and penalty
recommendation as specified.
Subsection (j) allows the executive director or designee by order to find
that a violation has occurred and assess a penalty, or to find that no
violation occurred according to the hearing examiner's recommendations.
Subsection (k) requires TCADA to give the notified person notice of the
order, as specified, under subsection (j).
Subsection (l) requires the person to either pay the penalty, pay the
penalty and file a petition for judicial review as specified, or file a
petition, as specified, without paying the penalty within 30 days after
the final decision date as provided by Chapter 2001, Government Code.
Subsection (m) allows the person who opts to file a petition without
paying the penalty to stay enforcement of the penalty as specified within
the 30-day period.
Subsection (n) allows TCADA to file a contest to an affidavit within 5
days after receipt of a copy of a sworn affidavit which accompanied the
request for the court to stay enforcement of the penalty as provided by
Subsection (m)(2). Requires the court to hold a hearing on the alleged
facts as soon as practicable and requires staying the enforcement of the
penalty on finding them true. Establishes that the person filing the
affidavit has the burden of proof as specified.
Subsection (o) allows the commissioner to refer the matter to the attorney
general for collection if the penalty is not paid and the enforcement of
the penalty is not stayed.
Subsection (p) establishes judicial review of the order as specified.
Subsection (q) allows the court to uphold or reduce the penalty and order
payment as appropriate if the violation is sustained. Requires the court
to order that no penalty is owed if it does not sustain the violation
occurrence.
Subsection (r) requires the court to proceed under this subsection, when
the judgment becomes final. Requires the court to order that TCADA pay the
person who already paid the penalty the appropriate amount plus accrued
interest as specified, if the penalty is reduced or not upheld by the
court. Requires the court to order the release of the escrow account or
bond if given by the person under Subsection (m)(1)(A) if the amount of
the penalty is not upheld. Requires the court to order that the amount of
the penalty be paid to TCADA from the escrow account and the remainder to
be released if it was paid by the person and then reduced. Requires the
court to order release of a paid bond after the person pays a reduce
amount.
Subsection (s) requires that a collected administrative penalty be
deposited in the state treasury to credit the general revenue fund.
Subsection (t) allows TCADA to assess reasonable expenses and costs
against a person as specified. Requires the person to pay assessments
under this subsection as specified. Allows TCADA to refer the matter to
the attorney general for collection.
Subsection (u) allows the attorney general to recover reasonable expenses
and costs on behalf of the attorney general and TCADA if an action is
brought to enforce an administrative penalty under this Act and the person
is found liable.
Subsection (v) provides that for the purposes of this section, "reasonable
expenses and costs" include items as specified.
Subsection (w) requires that costs and expenses collected under this
section be deposited in the state treasury to the credit of a special
account that may only be appropriated to TCADA.
SECTION 17. Amends Section 106.115, Alcoholic Beverage Code, as follows:
Subsection (a) replaces references to an alcohol awareness "course" to an
alcohol awareness program. Adds language making TCADA responsible for the
administration of the certification of approved alcohol awareness programs
and allowing TCADA to charge a nonrefundable application fee for
certifications as specified. Requires TCADA to adopt rules regarding
approved programs and to monitor, coordinate, and provide training to a
person who provides an alcohol awareness program.
Subsections (b), (c) and (d) replace references to an alcohol awareness
"course" to an alcohol awareness program.
SECTION 18. Amends Section 13, Article 42.12, Code of Criminal Procedure
as follows:
Subsection (j) adds language to allow TCADA to charge a nonrefundable
application fee for initial certification and certification renewal in the
context of court ordered educational programs for driving while
intoxicated repeat offenders.
SECTION 19. Amends Section 521.376, Transportation Code as follows:
Sec. 521.376. Adds "APPLICATION AND RENEWAL FEES" to the existing
heading title. Adds language which allows TCADA to charge a nonrefundable
application fee as specified.
SECTION 20. (a) Requires TCADA to adopt the first statewide service
delivery plan no later than February 1, 1998.
Subsection (b) Requires TCADA to conduct the study required by Section
461.0143, Health and Safety Code, as added by this Act, from the effective
date of this Act until August 31, 1998. Requires TCADA to implement a
unit rate reimbursement system for the fiscal year 1999 chemical
dependency treatment service contracts if the results of the study are
positive as determined by the specified criteria.
Subsection (c) Requires the governor to appoint six members to TCADA with
staggered terms of office as soon as practicable after the effective date
of this Act. Specifies that two members' terms expire February 1, 1999;
two members terms expire February 1, 2001; and two members' terms expire
February 1, 2003.
SECTION 21. Establishes the effective date of the Act as September 1,
1997.
SECTION 22. Emergency clause.
EXPLANATION OF AMENDMENTS
Committee Amendment No. 1.
Clarifies that only collections resulting from costs and expenses incurred
by TCADA for administrative hearings, not costs and expenses collected on
behalf of the attorney general, will be deposited in a special account for
TCADA's benefit. The amendment additionally specifies that jurisdiction
for lawsuits involving the collection of costs, claims, penalties, or any
other obligations is exclusively in Travis County district courts.
Committee Amendment No. 2.
Updates and clarifies a standard provision of the Sunset Commission
related to current equal employment opportunity policies by replacing the
word "guidelines."