BG C.S.H.B. 2322 75(R)BILL ANALYSIS PUBLIC HEALTH C.S.H.B. 2322 By: Maxey 4-9-97 Committee Report (Substituted) BACKGROUND Currently, there is no mandatory statewide requirement for certification of managers in retail food establishments. Many home-rule cities, however, require food manager certification which is mandated by city ordinance. As such, food managers and workers in larger urban cities have training in basic food safety, and those in more rural areas of the state do not. The Texas Department of Health (TDH), counties, and public health districts do not have the authority to require training and certification. Recent estimates indicate that approximately one-third to one-half of all meals are now consumed outside of the home. A survey consisting of food safety and sanitation knowledge taken by state field investigators showed that out of 2,063 individuals surveyed, the overall average score was only 63.43%. The Centers for Disease Control and Prevention reports that between 6.5 million and 8.1 million cases of illness, and as many as 9,100 related deaths, occur each year due to food borne contaminations. Certain consumer populations such as infants, children, the immuno-compromised, and the elderly, are at especially high risk of serious illness from contaminated foods. PURPOSE HB 2322 raises the level of food safety knowledge of food managers and workers employed in the retail food industry statewide in order to reduce the risk of food borne illness. This bill amends Chapter 438 of the Texas Health and Safety Code to require a minimum of one certified manager for each fixed location retail food establishment, but only if the establishment actually prepares food. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants additional rulemaking authority to the Texas Board of Health in SECTION 1 (Sections 438.102(c), 438.103(a) and (c), 438.104 and 438.105(a), Chapter 438, Subchapter G, Health and Safety Code). SECTION 2(c) of the bill requires the Texas Board of Health to adopt rules by January 1, 1998. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 438, Health and Safety Code, by adding Subchapter G as follows: SUBCHAPTER G. CERTIFICATION OF FOOD MANAGERS Sec. 438.101. DEFINITIONS. (1) Defines "Board" as the Texas Board of Health. (2) Defines "Chain" as three of more food establishments having the same owner. (3) Defines "Commissioner" as the commissioner of health. (4) Defines "Department" as the Texas Department of Health (TDH). (5) Defines "food establishment" as a fixed or mobile location retail establishment where food is prepared on-site for sale to the public. (6) Defines "food manager" as an individual who conducts, manages, or operates a food establishment. Sec. 438.102. CERTIFICATION REQUIRED. (a) prohibits a person from owning, conducting, maintaining, managing, or operating a food establishment in Texas, without employing a food manager who is certified in food management under this subchapter. Subsection (b) requires that a single unit of a food establishment chain designate one certified food manager for every three locations in the chain. Requires that a food establishment lacking an on-site certified food manager have on-site documentation that at least one employee has been trained in food protection management practices as specified. Subsection (c) exempts a food establishment that handles only nonpotentially hazardous food, as specified, from the requirements of this section. Requires the board to adopt rules to exempt establishments under this subsection. Sec. 438.103. QUALIFICATIONS FOR CERTIFICATION. (a) allows a person to receive certification and recertification as a food manager by meeting the requirements established by board rule. Subsection (b) requires the board, in establishing certification and recertification requirements, to consider the training or experience necessary to ensure that food is handled safely, the risk of contamination avoided, and compliance with basic food safety and sanitation standards maintained. Subsection (c) requires the board, by rule, to prescribe the requirements for issuance and renewal of a certificate under this subchapter, including the requirements for an examination. Requires that the board adopt criteria to approve examinations that are developed by federal, state, or local government agencies or by national testing organizations. Subsection (d) requires TDH, in cooperation with the Texas Agricultural Extension Service and other academic institutions, to develop and promote food safety educational training materials and courses. Sec. 438.104. POWERS AND DUTIES OF BOARD. (a) requires the board, by rule, to prescribe forms to administer this subchapter. Subsection (b) requires the board, by rule, to adopt reasonable and necessary fees as specified. Subsection (c) requires the board to adopt rules that provide standards of practice, including standards relating to food safety and sanitation, for a person holding a certificate. Subsection (d) requires the board to adopt rules for the denial, suspension, and revocation of a food manager certificate issued under this subchapter. Subsection (e) requires the board by rule to prescribe standards and procedures for required examinations, including standards for examination sites and site audits. Sec. 438.105. ENFORCEMENT. (a) allows TDH to enforce this subchapter as provided and by board rule. Subsection (b) allows a home-rule or Type A general-law municipality to enforce this subchapter if the municipality has adopted standards for food managers that are at least as stringent as the standards adopted by the board. Subsection (c) allows a county or a public health district to enforce this subchapter as specified. Sec. 438.106. ADMINISTRATIVE PENALTY. (a) allows TDH to assess an administrative penalty as specified. Subsection (b) prohibits the amount of the penalty from exceeding $1,000 for each violation. Establishes that each day of a continuing violation constitutes a separate violation. Subsection (c) requires TDH to consider factors, as specified, in determining the penalty amount. Subsection (d) establishes that all proceedings for the assessment of an administrative penalty under this subchapter are subject to Chapter 2001, Government Code. Sec. 438.107. NOTICE; REQUEST FOR HEARING. (a) requires TDH to give the person alleged to have committed the violation written notice, as specified, if TDH determines that a violation occurred after a factual investigation. Subsection (b) allows the notified person to accept TDH's determination, including the proposed penalty or to make a written request for a hearing no later than 20 days after notice is received. Subsection (c) requires the commissioner or designee to issue an order approving the determination and ordering penalty payment, as specified, if the notified person accepts the determination or if the person fails to respond timely. Sec. 438.108. HEARING; ORDER. (a) requires TDH to set a hearing, give notice of the hearing as specified, and designate a hearings examiner if the notified person requests a hearing. Subsection (b) requires the hearing examiner to make judgement, as specified, and promptly issue, as specified, a decision proposal and penalty amount recommendation. Subsection (c) allows the commissioner or designee, by order, to find, based on the hearing examiner's judgement and recommendation, that a violation occurred and assess a penalty or to find that no violation occurred. Sec. 438.109. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. (a) requires TDH to give notice of the order, as specified, to the person alleged to have committed the violation. Lists certain statements and information that must be included in the given notice. Subsection (b) requires the person to pay the penalty; pay the penalty and file a petition in contest as specified; or file the petition without paying the penalty. Subsection (c) allows the person opting to file the petition without payment to stay enforcement of the penalty as specified, or to request the court to stay enforcement as specified within a period of 30 days. Subsection (d) allows TDH to file a contest with the court within 10 days of having received a copy of a person's affidavit regarding financial inability. Requires the court to hold a hearing on the alleged facts as soon as practicable and to stay the enforcement of the penalty if the facts are found to be true. Establishes that the burden of proof is on the person filing the affidavit. Subsection (e) allow TDH 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 (f) establishes judicial review of the order as specified. Subsection (g) allows the court to uphold or reduce the penalty amount if the occurrence of the violation is sustained. Requires the court to order that no penalty is owed if the violation is not sustained. Subsection (h) requires the court to proceed, as specified, when the judgement becomes final. Requires the court to order that TDH pay the appropriate amount plus interest as specified to the person if the person paid a penalty which was then reduced or not upheld by the court. Requires the court to order the release of an escrow account or bond, as specified, if the person paid the penalty as specified and the amount is not upheld by the court. Requires the court to order that the amount of the penalty be paid to TDH , as specified, and the remainder released, if the person paid a penalty which was later reduced to an escrow account. Requires the court to order the release of a bond after the person pays the amount if the person had given the bond and then there is a reduction in penalty amount of the penalty. Sec. 438.110. PENALTY DEPOSITED TO STATE TREASURY. Requires a collected administrative penalty to be deposited in the general revenue fund of the state treasury. Sec. 438.111. INJUNCTION. (a) allows the attorney general, on behalf of the commissioner, to petition the district court for injunctive relief as specified. Subsection (b) requires a district court to grant any injunctive relief as warranted by the facts. Subsection (c) establishes that the venue for a suit brought under this section is in the county in which the violation or threat of violation is alleged to have occurred or in Travis County. Sec. 438.112. RECOVERY OF COSTS. (a) allows TDH to assess reasonable expenses and costs as specified if, as a result of administrative the hearing, the person's certification is denied, suspended, or revoked or if administrative penalties are assessed against the person. Requires the person to pay expenses and costs assessed by the 30th day after the order is issued is final. Allows TDH to refer the matter to the attorney general for collection of the expenses and costs. Subsection (b) establishes that the attorney general is allowed to recover, on behalf of the attorney general and TDH, reasonable expenses and costs, if an injunction is granted against the person or the person is found liable for an administrative penalty and the attorney general brings an action against a person under Section 438.111 or to enforce and administrative penalty assessed. Subsection (c) defines "reasonable expenses and costs" as specified, for the purposes of this section. Subsection (d) requires that the costs and expenses collected under this section are deposited in a special account of the state treasury, that may only be appropriated to TDH. Subsection (e) requires that costs and expenses collected on behalf of the attorney general be deposited in the general revenue fund and allows their appropriation to the attorney general. SECTION 2. Establishes that this Act is effective September 1, 1997, except for Section 438.102, Health and Safety Code, which takes effect September 1, 1998. Requires the board to adopt rules under this Act by January 1, 1998. SECTION 3. Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE All of the changes between HB 2322 and CSHB 2322 are in SECTION 1 (Chapter 438G, Health and Safety Code). The substitute bill adds subsection (d) to the original bill's Section 438.103 so as to require that TDH work in cooperation with the Agricultural Extension Service to develop and promote food safety training and educational materials. CSHB 2322 additionally contains Sections 438.106 to 438.110 (regarding various aspects of the administrative penalty) all of which were standard legislative text which was inadvertently omitted from the original draft. Also new in the substitute bill is Section 438.112(e) which clarifies that monies collected on behalf of the attorney general can be made available to the attorney general through appropriations.