HBA-DMD H.B. 1033 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 1033 By: Bosse Public Health 3/5/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE The Texas Cancer Council (council), was created in 1985 by the 69th Legislature to be the state's leader in coordinating partnerships between cancer prevention, detection, and treatment agencies and organizations. The council is responsible for developing, implementing, and promoting the Texas Cancer Plan, which is a comprehensive, statewide strategy for addressing the challenge of cancer control and also grants funds to public or private entities that conduct cancer control efforts. Council rules give the executive director of the council (executive director) the authority to hire and supervise council staff, but current law gives the council the authority to hire a secretary for the executive director. Additionally, the council is required to report to the legislature no later than January 31 of each odd-numbered year, however, since 1993 the council has submitted a cover letter, the strategic plan, and the most current agency brochures in the place of a traditional biennial report. The council is subject to the Sunset Act (Chapter 325, Government Code) and will be abolished on September 1, 1999, unless continued by the legislature. C.S.H.B. 1033 continues the council for 12 years and restructures its composition by removing from the council two members of the legislature and a representative from the Department of Human Services, and suggests inclusion of the cancer survivors or members of their families on the council. The bill reduces the number of voting members from 16 to 15 by establishing that the representative from the Department of Health serves in a non-voting, advisory position. The bill establishes qualifications for members of the council and prohibits a member or member's spouse from belonging to an organization or entity that receives money from the council and also prohibits a member of the council from acting in a capacity that requires registration as a lobbyist. The bill establishes standards of conduct, a training program, a system for the council to maintain and investigate complaints, and an equal employment opportunity program. The bill also requires the council to work to implement the Texas Cancer Plan and deletes the requirement for the council to submit a report to the legislature no later than January 31 of each odd-numbered year. Additionally, the bill deletes the council's authority to employ a secretary for the executive director. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 102.002, 102.003, 102.004, and 102.0041, Health and Safety Code, as follows: Sec. 102.002. TEXAS CANCER COUNCIL. Requires the Texas Cancer Council (council) to work to implement the Texas Cancer Plan. Sec. 102.003. SUNSET PROVISION. Sets forth that the council is continued until September 1, 2011, rather than 1999, under the Texas Sunset Act, Chapter 325, Government Code. Sec. 102.004. COMPOSITION OF COUNCIL. Deletes as council members one member of the house of representatives appointed by the speaker of the house of representatives, one member of the senate appointed by the lieutenant governor, and the chairman of the Texas Board of Human Services or a representative appointed by the chairman. Establishes that the chairman of the Texas Board of Health or a representative appointed by the chairman, serves as an ex officio nonvoting member. Establishes that the governor, lieutenant governor, and the speaker of the house each appoint a representative of a "licensed health care facility," rather than a "public or private hospital," to the council. Creates three new council members to be appointed by the governor, lieutenant governor, and speaker of the house, respectively, each of whom must be a licensed health care professional active in the treatment or control of cancer, other than a physician. Sets forth that the governor, lieutenant governor, and the speaker of the house should attempt to include cancer survivors and family members of cancer patients when making appointments to the council. Redesignates Subdivision (4) to (1) and Subdivisions (5)-(16) to (2)-(13). Creates Subsection (b) from new text. Makes conforming changes. Sec. 102.0041. New Title: QUALIFICATIONS OF COUNCIL MEMBERS AND EMPLOYEES. (a) Defines "Texas trade association" as a cooperative and voluntarily joined association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. Provides that the term does not include a voluntary health organization. Creates Subsections (b)-(d) from new and existing text. Redesignates Subsections (b)-(e) to (d)-(h). Makes nonsubstantive changes. (b) Prohibits a person from being a public member of the council if the person or the person's spouse is employed by or participates in the management of a business entity or other organization receiving money from the council. Makes nonsubstantive changes. (c) Prohibits a person from being a council member and from being a council employee who is employed in a "bona fide executive, administrative, or professional capacity" as that phrase is used for the purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), and its subsequent amendments, if the person or the person's spouse is an officer, employee, or paid consultant of a Texas trade association in the field of cancer control. (d) Prohibits a person from being a council member or acting as a general counsel to the council or the council's staff if the person is required to register as a lobbyist under Chapter 305 (Registration of Lobbyists), Government Code, because of the person's actions on behalf of the council. (e) Redesignated from existing Subsection (c). (f) Provides that failing to have and maintain the qualifications required by Section 102.004, rather than this section, constitutes grounds for removal from the council. Provides a ground for removal from the council if the member is ineligible for membership under Subsections (b)-(d) and if the member is absent from more than half of the regularly scheduled meetings during a calendar year without an excuse approved by the council, rather than being absent from more than two consecutive meetings. Makes conforming and nonsubstantive changes. (g) Provides that the validity of an action of the council is not affected by the fact that it is taken when a ground for removal of a council member exists. (h) Requires the executive director of the council (executive director), rather than the presiding officer of the council, to notify the presiding officer, rather than the executive director, of the council when a potential ground for removal exists. Requires the presiding officer to notify the appointing authority and the attorney general that a potential ground for removal exists. Requires the executive director, if the potential removal involves the presiding officer, to notify the next highest ranking officer of the council who is required to notify the appointing authority and the attorney general that a potential ground for removal exists. Makes conforming changes. SECTION 2. Amends Section 102.005(a), Health and Safety Code, to establish that the terms of five, rather than four, council members serving staggered six-year terms, expire February 1 of each even-numbered year, with the exception of the ex officio member of the council, rather than a member of the legislature or a representative of a state agency. Makes a conforming change. SECTION 3. Amends Sections 102.006 and 102.008, Health and Safety Code, as follows: Sec. 102.006. OFFICERS. Requires the governor to designate, rather than appoint, a member of the council, other than the ex officio member, as the presiding officer of the council, rather than chairman, to serve in that capacity at the pleasure of the governor. Sec. 102.008. MEETINGS. Requires the council to meet at the call of the presiding officer, rather than the chairman. Requires the council to develop and implement policies that provide the public with a reasonable opportunity to appear before the council and to speak on any issue under the jurisdiction of the council. Creates Subsection (b) from new text. SECTION 4. Amends Sections 102.009(a) and (b), Health and Safety Code, to delete the requirement of the council to report to the legislature no later than January 31 of each odd-numbered year and to delete the authorization of the council to employ a secretary for the executive director. Makes conforming changes. SECTION 5. Amends Chapter 102, Health and Safety Code, by adding Sections 102.011 and 102.013-102.016, as follows: Sec. 102.011. STANDARDS OF CONDUCT. Requires the executive director or the executive director's designee to provide to members of the council and to council employees, information regarding the requirements for office or employment under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees. Sec. 102.013. TRAINING. (a) Prohibits a person who is appointed to and qualifies for office as a council member from voting, deliberating, or being counted as a member in attendance at a meeting of the council until the person completes a training program that complies with this section. (b) Provides that the training program must provide the person with information regarding: (1) the legislation that created the council; (2) the programs operated by the council; (3) the role and functions of the council; (4) the rules of the council with an emphasis on the rules that relate to disciplinary and investigatory authority; (5) the current budget for the council; (6) the results of the most recent formal audit of the council; (7) the requirements of the open meetings law, Chapter 551, Government Code; the public information law, Chapter 552, Government Code; the administrative procedure law, Chapter 2001, Government Code; and other law relating to public officials, including conflict-of-interest laws; and (8) any applicable ethics policies adopted by the council or the Texas Ethics Commission. (c) Entitles a person who is appointed to the council to reimbursement, as provided by the General Appropriations Act, for travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office. Sec. 102.014. SEPARATION OF RESPONSIBILITIES. Requires the council to develop and implement policies that clearly separate the policymaking responsibilities of the council and the management responsibilities of the executive director and the staff of the council. Sec. 102.015. COMPLAINTS. (a) Requires the council to maintain a file on each written complaint that is filed with the council that must include the name of the person who filed the complaint, the date the council receives the complaint, the subject matter of the complaint, the name of each person contacted in relation to the complaint, a summary of the results of the review or investigation of the complaint, and an explanation of the reason the file was closed if the council closed the file without taking action other than to investigate the complaint. (b) Requires the council to provide to the person who filed the complaint and to each person who is a subject of the complaint a copy of the council's policies and procedures that relate to complaint investigation and resolution. (c) Requires the council to notify the person filing the complaint and each person who is a subject of the complaint, at least quarterly until final disposition of the complaint, concerning the status of the investigation unless the notice would jeopardize an undercover investigation. Sec. 102.016. EQUAL EMPLOYMENT OPPORTUNITY. Requires the executive director or the executive director's designee to prepare and maintain a written policy statement implementing a program of equal employment opportunity Sets forth standard sunset language. Provides that the policy statement must be updated annually, be reviewed by the state Commission on Human Rights for compliance with Subsection (b), and be filed with the governor's office. SECTION 6. (a) Sets forth that on the effective date of this Act, certain membership positions of the Texas Cancer Council are abolished and the following persons cease to be members: the member of the house of representatives appointed by the speaker, the member of the senate appointed by the lieutenant governor, and the chairman of the Texas Board of Human Services or representative appointed by the chairman. (b) Sets forth that as soon as possible on or after the effective date of this Act the governor is required to appoint a licensed health care professional active in the treatment or control of cancer, other than a physician, to the Texas Cancer Council for a term expiring February 1, 2000. Sets forth that as soon as possible on or after the effective date of this Act the speaker of the house is required to appoint a licensed health care professional active in the treatment or control of cancer, other than a physician, to the Texas Cancer Council for a term expiring February 1, 2002. Sets forth that as soon as possible on or after the effective date of this Act the lieutenant governor is required to appoint a licensed health care professional active in the treatment or control of cancer, other than a physician, to the Texas Cancer Council for a term expiring February 1, 2004. (c) Makes application of this Act prospective, except as provided by Subsection (a) of this section. SECTION 6.Effective date: September 1, 1999. SECTION 7.Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 1033 modifies the original bill by including Section 102.002, Health and Safety Code, among the sections listed in SECTION 1. Requires the Texas Cancer Council (council) to work to implement the Texas Cancer Plan. Deletes the requirement in new SECTION 4, Section 102.009(a), Health and Safety Code, that the council report to the legislature no later than January 31 of each odd-numbered year and deletes the council's authorization to employ a secretary for the executive director in Section 102.009(b), Health and Safety Code. Additionally, C.S.H.B. 1033 modifies the original bill by redesignating SECTIONS 4 and 5 to SECTIONS 5 and 6, respectively.