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."