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.