BG S.B. 702 75(R) BILL ANALYSIS PUBLIC HEALTH S.B. 702 By: Moncrief (Hirschi) 4-9-97 Committee Report (Unamended) BACKGROUND Currently, the Texas Department of Health (department) is responsible for licensing and regulating massage therapists, medical radiological technologists, respiratory therapists, and opticians. The present penalty for violating licensure laws is generally a Class B misdemeanor; however, violations of the rules may also result in sanctions, reprimands, suspensions of licenses, license revocation, or non-renewal. This legislation establishes a method for imposition and collection of monetary administrative penalties under certain professional licensing programs in order to establish a more consistent and appropriate sanction for violations which pose no direct threat to patient health and safety. PURPOSE S.B. 702 establishes the imposition of administrative penalties under certain professional licensing programs. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants additional rulemaking authority to the Department of Health in SECTION 1 (Chapter 752, Sec. 13A(a), Acts of the 69th Legislature, 1985 (Article 4512k, Vernon's Texas Civil Statutes)), in SECTION 2 (Chapter 829, Sec. 13A(a), Acts of the 69th Legislature, Regular Session, 1985 (Article 4512l, Vernon's Texas Civil Statutes)), in SECTION 3 (Sec. 2.15(a), The Medical Radiologic Technologist Certification Act, (Article 4512m, Vernon's Texas Civil Statutes)), and in SECTION 4 (Sec. 10A(a), The Opticians' Registry Act, (Article 4551-1, Vernon's Texas Civil Statutes)). SECTION BY SECTION ANALYSIS SECTION 1. Chapter 752, Acts of the 69th Legislature, 1985 (Article 4512k, Vernon's Texas Civil Statutes), is amended by adding Sec. 13A as follows: Sec. 13A. ADMINISTRATIVE PENALTY. Subsection (a) allows the department to assess administrative penalties for violations of this act or rules adopted under this act. Subsection (b) prohibits the penalty from exceeding $1000 for each violation, and establishes that each day of a continuing violation is a separate violation. Subsection (c) requires the department to consider the seriousness; history; amount of penalty necessary to deter future violations; efforts made to correct the violations; and other matters that justice may require in assessing a penalty. Subsection (d) stipulates that all proceedings for the assessment of this penalty are subject to Chapter 2001, Government Code. Subsection (e) requires the department to give written notice of the violation to the alleged violator if it is determined that a violation has occurred. Requires the notice to include a summary of the alleged violation; a statement of the proposed penalty based on Subsection (c); and a statement of the person's right to a hearing. Subsection (f) stipulates that the person has until the 20th day after receiving the notice to accept the determination and the penalty of the department, or to make a written request for a hearing. Subsection (g) requires the commissioner of public health or the commissioner's designee to issue an order approving the determination and ordering the payment of the proposed penalty, if the person accepts the penalty. Subsection (h) requires the department to set a hearing; give written notice of the hearing to the person; designate an examiner to conduct the hearing, if a timely request for a hearing is made. Subsection (i) requires the examiner to make findings of fact and conclusions of law and issue to the commissioner or designee a proposal for decision and a recommended penalty if appropriate. Subsection (j) allows the commissioner or designee to find that a violation has occurred and assess a penalty, or to find that no violation occurred, based on the examiner's findings and recommendations. Subsection (k) requires the department to give notice of the order under subsection (j) to the person, and to include separate statements of finding of fact and conclusions of law; the amount of the penalty assessed; and a statement of the right to judicial review of the order. Subsection (l) stipulates that the person has until the 30th day after the final decision, as provided by Chapter 2001, Government Code, to pay the penalty; pay, and file a petition for judicial review contesting the decision; or refuse to pay and file a petition for judicial review. Subsection (m) allows a person acting under Subsection (l)(3) of this section within the 30-day period, to stay enforcement of the penalty or request the court to stay enforcement of the penalty as specified. Subsection (n) provides that department has 5 days to file a contest to the affidavit if the department receives a copy of an affidavit as specified. Requires the court to hold a hearing and stay enforcement of the penalty until the facts in the affidavit are proven true. Subsection (o) stipulates that if the person does not pay the penalty and enforcement is not stayed, the matter is referred to the attorney general for collection. Subsection (p) provides that judicial review of the order is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and is under the substantial evidence rule. Subsection (q) allows the court to uphold or reduce the amount of the penalty, and order the person to pay if the court sustains the occurrence of the violation. If the court does not sustain the violation, it shall order that no penalty is owed. Subsection (r) requires the court to proceed as specified when the court judgement becomes final. Subsection (s) requires administrative penalties collected under this section to be deposited in the general revenue fund of the state treasury. Subsection (t) allows reasonable administrative costs and expenses to be assessed against the person if, as a result of an administrative hearing, a penalty is assessed against the person. Establishes that the person has 30 days after notification to pay these costs. Allows the department to refer the matter to the attorney general for collection. Subsection (u) allows the attorney general to recover reasonable expenses and costs if the attorney general brings an enforcement action under this Act. Subsection (v) provides that specified reasonable expenses and costs include those incurred by the department and the attorney general in investigating, initiating, and prosecuting an action. Subsection (w) requires costs and expenses collected under this section to be deposited in a special account to be appropriated only to the department. SECTION 2. Amends Chapter 829, Acts of the 69th Legislature, Regular Session, 1985 (Article 4512l, Vernon's Texas Civil Statutes), by adding Section 13A, entitled "ADMINISTRATIVE PENALTY." Makes conforming changes so as to add identical language to that in SECTION 1. SECTION 3. Amends the Medical Radiologic Technologist Certification Act, (Article 4512m, Vernon's Texas Civil Statutes), by adding Section 2.15, entitled "ADMINISTRATIVE PENALTY." Makes conforming changes so as to add identical language to that in SECTION 1. SECTION 4. Amends the Opticians' Registry Act, (Article 4551-1, Vernon's Texas Civil Statutes), by adding Section 10A, entitled "ADMINISTRATIVE PENALTY." Makes conforming changes so as to add identical language to that in SECTION 1. SECTION 5. Provides that the effective date is September 1, 1997, and violations occurring prior to the effective date of this Act are not covered by this Act. SECTION 6. Emergency clause.