1-1 By: Gray (Senate Sponsor - Zaffirini) H.B. No. 1400
1-2 (In the Senate - Received from the House April 9, 1999;
1-3 April 12, 1999, read first time and referred to Committee on Health
1-4 Services; April 29, 1999, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 5, Nays 0;
1-6 April 29, 1999, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 1400 By: Nelson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the continuation and functions of the Texas Commission
1-11 for the Blind.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Sections 91.001, 91.002, and 91.011, Human
1-14 Resources Code, are amended to read as follows:
1-15 Sec. 91.001. SUNSET PROVISION. The Texas Commission for the
1-16 Blind is subject to Chapter 325, Government Code (Texas Sunset
1-17 Act). Unless continued in existence as provided by that chapter,
1-18 the commission is abolished and this chapter expires effective
1-19 September 1, 2011 [1999].
1-20 Sec. 91.002. DEFINITIONS. In this chapter:
1-21 (1) "Commission" means the Texas Commission for the
1-22 Blind.
1-23 (2) "Blind" means a person having not more than 20/200
1-24 visual acuity in the better eye with correcting lenses or visual
1-25 acuity greater than 20/200 but with a limitation in the field of
1-26 vision such that the widest diameter of the visual field subtends
1-27 an angle no greater than 20 degrees.
1-28 (3) "Child with visual impairments" means a child who
1-29 is blind or visually impaired or who has a visual condition that
1-30 requires treatment, psychological assistance counseling, or other
1-31 assistance that the commission can provide.
1-32 (4) "Visual handicap" includes blindness, an eye
1-33 condition for which there is a medical prognosis indicating that
1-34 the condition is of a progressive nature and may deteriorate either
1-35 to blindness or to a substantial loss of vision, and physical or
1-36 psychological handicaps that accompany or complement a disorder or
1-37 imperfection of the eye.
1-38 [(4) "Visually handicapped child" means a child with a
1-39 visual handicap or with a visual condition requiring cosmetic
1-40 treatment, psychological assistance, counseling, or other
1-41 assistance that the commission can render.]
1-42 (5) "Visually impaired" means a visual acuity of not
1-43 more than 20/70 in the better eye with correcting lenses, or visual
1-44 acuity greater than 20/70 but with a limitation in the field of
1-45 vision such that the widest diameter of the visual field subtends
1-46 an angle no greater than 30 degrees.
1-47 Sec. 91.011. TEXAS COMMISSION FOR THE BLIND. (a) The Texas
1-48 Commission for the Blind is composed of nine members appointed by
1-49 the governor with the consent of the senate. Except as provided by
1-50 this subsection, appointments to the commission [board] shall be
1-51 made without regard to the race, color, disability [handicap], sex,
1-52 religion, age, or national origin of the appointees. Five [Two]
1-53 members must be blind or visually impaired residents [citizens] of
1-54 the state, one member must be a family member, relative, or
1-55 guardian of a blind or visually impaired resident of the state, and
1-56 three [the remaining] members must be members of the general
1-57 public. A person is not eligible for appointment as a public
1-58 member if the person or the person's spouse:
1-59 (1) is employed by or participates in the management
1-60 of a business entity or other organization regulated by the
1-61 commission or receiving funds from the commission;
1-62 (2) owns, controls, or has, directly or indirectly,
1-63 more than a 10 percent interest in a business entity or other
1-64 organization regulated by the commission or receiving funds from
2-1 the commission; or
2-2 (3) uses or receives a substantial amount of tangible
2-3 goods, services, or funds from the commission.
2-4 (b) A person may not be a member of the commission and may
2-5 not be a commission employee in a "bona fide executive,
2-6 administrative, or professional capacity," as that phrase is used
2-7 for purposes of establishing an exemption to the overtime
2-8 provisions of the federal Fair Labor Standards Act of 1938 (29
2-9 U.S.C. Section 201 et seq.) and its subsequent amendments if:
2-10 (1) the person is an officer, employee, or paid
2-11 consultant of a Texas trade association in the field of service
2-12 provision to persons who are blind or visually impaired or a field
2-13 that otherwise relates to persons who are blind or visually
2-14 impaired; or
2-15 (2) the person's spouse is an officer, manager, or
2-16 paid consultant of a Texas trade association in the field of
2-17 service provision to persons who are blind or visually impaired or
2-18 a field that otherwise relates to persons who are blind or visually
2-19 impaired.
2-20 In this subsection "Texas trade association" means a
2-21 cooperative and voluntarily joined association of business or
2-22 professional competitors in this state designed to assist its
2-23 members and its industry or profession in dealing with mutual
2-24 business or professional problems and in promoting their common
2-25 interest. [An officer, employee, or paid consultant of an
2-26 association that has as its primary interest the provision of
2-27 services to, or other matters relating to, the blind may not be a
2-28 member or employee of the commission, nor may a person who cohabits
2-29 with or is the spouse of an officer, managerial employee, or paid
2-30 consultant of such an association be a member of the commission or
2-31 an employee of the commission grade 17 or over, including exempt
2-32 employees, according to the position classification schedule under
2-33 the General Appropriations Act.]
2-34 (c) A person may not be a member of the commission or act as
2-35 the general counsel to the commission if the person [who] is
2-36 required to register as a lobbyist under Chapter 305, Government
2-37 Code, because [by virtue] of the person's [his] activities for
2-38 compensation on behalf of a profession related to the operation of
2-39 the commission [provider of services to the blind, may not serve as
2-40 a member of the commission or act as the general counsel to the
2-41 commission].
2-42 (d) [(c)] Members of the commission hold office for terms of
2-43 six years with the terms of three members expiring on February 1 of
2-44 odd-numbered years.
2-45 (e) [(d)] Commission members and consumer advisory committee
2-46 members are entitled to a per diem, set by the General
2-47 Appropriations Act, for each day of attendance at an official
2-48 meeting as authorized by the commission. Commission members are
2-49 entitled to reimbursement for necessary expenses of travel on
2-50 official business. Consumer advisory committee members are
2-51 entitled to reimbursement for travel expenses in the same manner as
2-52 state employees. A commission member or consumer advisory
2-53 committee member who is disabled and, because of the disability,
2-54 requires special aids or a travel attendant in order to attend an
2-55 official meeting is entitled to reimbursement for the cost of the
2-56 special aids or attendant in accordance with rules set by the
2-57 commission.
2-58 (f) [(e)] The governor shall designate a member of the
2-59 commission to serve as presiding officer, and the officer shall
2-60 serve at the governor's pleasure.
2-61 (g) [(f)] Five members of the commission constitute a quorum
2-62 for the transaction of business.
2-63 (h) [(g)] The commission shall adopt rules prescribing the
2-64 policies and procedures followed by the commission in the
2-65 administration of its programs.
2-66 SECTION 2. Section 91.012(a), Human Resources Code, is
2-67 amended to read as follows:
2-68 (a) The commission shall [annually] appoint an executive
2-69 director with the approval of the governor.
3-1 SECTION 3. Section 91.015(c), Human Resources Code, is
3-2 amended to read as follows:
3-3 (c) If the executive director [agency head] has knowledge
3-4 that a potential ground for removal exists, the executive director
3-5 [he] shall notify the presiding officer [chairman] of the
3-6 commission of the potential [such] ground. The presiding officer
3-7 [chairman of the commission] shall then notify the governor and the
3-8 attorney general that a potential ground for removal exists. If
3-9 the potential ground for removal involves the presiding officer,
3-10 the executive director shall notify the next highest ranking
3-11 officer of the commission, who shall then notify the governor and
3-12 the attorney general that a potential ground for removal exists.
3-13 SECTION 4. Section 91.016, Human Resources Code, is amended
3-14 by amending Subsections (c) and (d) and adding Subsection (e) to
3-15 read as follows:
3-16 (c) The executive director or the executive director's
3-17 designee [commission] shall provide to [its] members and employees
3-18 of the commission as often as is necessary information regarding
3-19 their qualifications under this title and their responsibilities
3-20 under applicable laws relating to standards of conduct for state
3-21 officers or employees.
3-22 (d) The commission shall develop and implement policies
3-23 which clearly separate the policymaking [respective]
3-24 responsibilities of the commission [governing body of the agency]
3-25 and the management responsibilities of the executive director and
3-26 the staff of the commission [agency].
3-27 (e) The commission by rule may develop and implement
3-28 policies allowing shift differentials to be paid to employees in
3-29 the vocational rehabilitation program.
3-30 SECTION 5. Subchapter B, Chapter 91, Human Resources Code,
3-31 is amended by amending Sections 91.017 and 91.018 and adding
3-32 Section 91.0165 to read as follows:
3-33 Sec. 91.0165. CRIMINAL HISTORY RECORD INFORMATION. (a) The
3-34 commission may obtain from any law enforcement or criminal justice
3-35 agency the criminal history record information that relates to a
3-36 person applying to become an employee of the commission.
3-37 (b) The commission by rule shall establish criteria for
3-38 denying a person's employment application based on the results of a
3-39 criminal history check.
3-40 Sec. 91.017. EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT.
3-41 (a) The executive director or the executive director's [his or
3-42 her] designee shall prepare and maintain a written policy statement
3-43 [plan] to ensure that [assure implementation of a program of equal
3-44 employment opportunity whereby] all personnel transactions are made
3-45 without regard to race, color, disability [handicap], sex,
3-46 religion, age, or national origin. The policy statement must [plan
3-47 shall] include:
3-48 (1) personnel policies, including policies relating to
3-49 recruitment, evaluation, selection, training, and promotion of
3-50 personnel, that show the intent of the commission to avoid the
3-51 unlawful employment practices described by Chapter 21, Labor Code;
3-52 and
3-53 (2) an analysis of the extent to which the composition
3-54 of the commission's personnel is in accordance with state and
3-55 federal law and a description of reasonable methods to achieve
3-56 compliance with state and federal law [a comprehensive analysis
3-57 which meets federal and state guidelines of all the commission's
3-58 work force by race, sex, ethnic origin, class of position, and
3-59 salary or wages;]
3-60 [(2) plans for recruitment, evaluation, selection,
3-61 appointment, training, promotion, and other personnel policies;]
3-62 [(3) procedures by which a determination can be made
3-63 of significant underutilization in the agency work force of all
3-64 persons for whom federal and state guidelines encourage a more
3-65 equitable balance and steps reasonably designed to overcome any
3-66 identified underutilization; and]
3-67 [(4) objectives and goals, with appropriate timetables
3-68 for the achievement of the objectives and goals, assignments of
3-69 responsibility for their achievement, and an appropriate program
4-1 for reviewing and maintaining these goals and objectives once
4-2 achieved].
4-3 (b) The policy statement must:
4-4 (1) be updated annually;
4-5 (2) be reviewed by the state Commission on Human
4-6 Rights for compliance with Subsection (a)(1); and
4-7 (3) be filed with the governor's office.
4-8 Sec. 91.018. RELATIONS WITH PUBLIC. (a) The commission
4-9 shall prepare information of public interest describing the
4-10 functions of the commission and describing the commission's
4-11 procedures by which complaints are filed with and resolved by the
4-12 commission. The commission shall make the information available to
4-13 the general public and appropriate state agencies.
4-14 (b) The commission shall promulgate rules establishing
4-15 methods by which consumers or service recipients can be notified of
4-16 the name, mailing address, and telephone number of the commission
4-17 for the purpose of directing complaints to the commission. The
4-18 commission may provide for the notification through inclusion of
4-19 the information:
4-20 (1) on each registration form, application, or written
4-21 contract for services of a person or entity regulated or authorized
4-22 by this title;
4-23 (2) on a sign that is prominently displayed in the
4-24 place of business of each person or entity regulated or authorized
4-25 by this title; or
4-26 (3) in a bill for service provided by a person or
4-27 entity regulated or authorized by this title.
4-28 (c) Except as required by federal regulations for resolving
4-29 complaints received from people who are receiving service from the
4-30 commission, the [The] commission shall maintain a [keep an
4-31 information] file on [about] each written complaint filed with the
4-32 commission. The file must include:
4-33 (1) the name of the person who filed the complaint;
4-34 (2) the date the complaint is received by the
4-35 commission;
4-36 (3) the subject matter of the complaint;
4-37 (4) the name of each person contacted in relation to
4-38 the complaint;
4-39 (5) a summary of the results of the review or
4-40 investigation of the complaint; and
4-41 (6) an explanation of the reason the file was closed
4-42 if the agency closed the file without taking action other than to
4-43 investigate the complaint [relating to a licensee or entity
4-44 regulated by the commission].
4-45 (d) The [If a written complaint is filed with the commission
4-46 relating to a licensee or entity regulated by the commission, the]
4-47 commission, at least [as frequently as] quarterly [and] until final
4-48 disposition of the complaint, shall notify the person filing the
4-49 complaint and each person who is a subject of [parties to] the
4-50 complaint of the status of the complaint unless the notice would
4-51 jeopardize an undercover investigation.
4-52 (e) The commission shall provide to the person filing the
4-53 complaint and to each person who is a subject of the complaint a
4-54 copy of the commission's policies and procedures relating to
4-55 complaint investigation and resolution.
4-56 (f) The commission shall develop and implement policies that
4-57 will provide the public with a reasonable opportunity to appear
4-58 before the commission and to speak on any issue under the
4-59 jurisdiction of the commission.
4-60 (g) [(f)] The commission shall establish a consumer advisory
4-61 committee and adopt rules relating to the committee's size,
4-62 geographical representation, meetings, duties, and reporting
4-63 requirements.
4-64 SECTION 6. Section 91.019, Human Resources Code, is amended
4-65 to read as follows:
4-66 Sec. 91.019. REPORT; POSTING OF REPORT AND PERFORMANCE DATA.
4-67 (a) The commission shall file annually with the governor and the
4-68 presiding officer of each house of the legislature a complete and
4-69 detailed written report accounting for all funds received and
5-1 disbursed by the commission during the preceding year. The form of
5-2 the annual report and the reporting time shall be that provided in
5-3 the General Appropriations Act.
5-4 (b) The commission shall post on the Internet in an
5-5 accessible format the report required under this section and any
5-6 other agency performance data required to be reported to this state
5-7 or the federal government. If a report or performance data contain
5-8 confidential information, the commission shall remove the
5-9 confidential information before posting the report or performance
5-10 data.
5-11 SECTION 7. Subchapter B, Chapter 91, Human Resources Code,
5-12 is amended by adding Section 91.020 to read as follows:
5-13 Sec. 91.020. TRAINING OF COMMISSION MEMBERS. (a) A person
5-14 who is appointed to and qualifies for office as a member of the
5-15 commission may not vote, deliberate, or be counted as a member in
5-16 attendance at a meeting of the commission until the person
5-17 completes a training program that complies with this section.
5-18 (b) The training program must provide the person with
5-19 information regarding:
5-20 (1) the legislation that created the commission;
5-21 (2) the programs operated by the commission;
5-22 (3) the role and functions of the commission;
5-23 (4) the rules of the commission with an emphasis on
5-24 the rules that relate to disciplinary and investigatory authority;
5-25 (5) the current budget for the commission;
5-26 (6) the results of the most recent formal audit of the
5-27 commission;
5-28 (7) the requirements of:
5-29 (A) the open meetings law, Chapter 551,
5-30 Government Code;
5-31 (B) the public information law, Chapter 552,
5-32 Government Code;
5-33 (C) the administrative procedure law, Chapter
5-34 2001, Government Code; and
5-35 (D) other laws relating to public officials,
5-36 including conflict of interest laws; and
5-37 (8) any applicable ethics policies adopted by the
5-38 commission or the Texas Ethics Commission.
5-39 (c) A person appointed to the commission is entitled to
5-40 reimbursement, as provided by the General Appropriations Act, for
5-41 the travel expenses incurred in attending the training program
5-42 regardless of whether the attendance at the program occurs before
5-43 or after the person qualifies for office.
5-44 SECTION 8. Subchapter C, Chapter 91, Human Resources Code,
5-45 is amended by amending Section 91.028 and adding Sections 91.022,
5-46 91.029, 91.031, and 91.032 to read as follows:
5-47 Sec. 91.022. SERVICE DELIVERY. (a) The commission shall
5-48 establish and maintain, by rule, guidelines for the delivery of
5-49 services by the commission. The guidelines must be consistent with
5-50 state and federal law and regulations and must include rules
5-51 relating to:
5-52 (1) oversight and monitoring of service delivery;
5-53 (2) guidance to counselors on service delivery
5-54 procedures;
5-55 (3) case management benchmarks establishing reasonable
5-56 time frames for service delivery; and
5-57 (4) financial planning information for the commission.
5-58 (b) The commission shall establish written procedures
5-59 relating to the evaluation of services delivered by the commission
5-60 to provide guidance to counselors and commission employees. These
5-61 procedures must include methods to evaluate:
5-62 (1) client progress;
5-63 (2) service delivery effectiveness; and
5-64 (3) counselor performance.
5-65 Sec. 91.028. SERVICES FOR [VISUALLY HANDICAPPED] CHILDREN
5-66 WITH VISUAL IMPAIRMENTS. (a) The commission may provide services
5-67 to [visually handicapped] children with visual impairments to
5-68 supplement the services provided by other state agencies if the
5-69 commission determines that the provision of the services is
6-1 appropriate and that the services will assist the children in
6-2 achieving financial self-sufficiency and a fuller and richer life.
6-3 It is the intention of the legislature that all state agencies
6-4 concerned with [visually handicapped] children with visual
6-5 impairments cooperate fully to achieve this purpose.
6-6 (b) The commission shall establish, by rule, the income
6-7 level at which the Medicaid eligibility of a client applying for
6-8 services under Subsection (a) shall be verified.
6-9 (c) The commission shall verify the Medicaid eligibility of
6-10 a client applying for services under Subsection (a) whose income
6-11 level is equal to or less than the income level established by the
6-12 commission under Subsection (b).
6-13 (d) The commission shall verify the Medicaid eligibility of
6-14 a client who is required by the commission to apply for Medicaid
6-15 not later than the 90th day after the date the application for
6-16 services from the commission is made.
6-17 (e) In verifying Medicaid eligibility, an employee of the
6-18 commission shall:
6-19 (1) examine appropriate state or private Medicaid
6-20 eligibility databases; and
6-21 (2) record on each client's application for services
6-22 whether Medicaid eligibility was verified, the source of the
6-23 verification, and the date of the verification.
6-24 (f) Except as provided by Subsection (g), a person may not
6-25 solicit, disclose, receive, use, or knowingly permit the use of
6-26 records or other information concerning an applicant for or
6-27 recipient of children's program services that is directly or
6-28 indirectly acquired by an officer or employee of the state or its
6-29 political subdivisions in the course of the officer's or employee's
6-30 official duties.
6-31 (g) A person may use the information provided under
6-32 Subsection (f) in accordance with commission rules, only for
6-33 purposes directly connected with the administration of the
6-34 children's program and for the investigation of a complaint filed
6-35 against an agency, employee, or contracted provider of services.
6-36 Sec. 91.029. RATES FOR MEDICAL SERVICES. (a) The
6-37 commission shall adopt rules and standards governing the
6-38 determination of rates the commission will pay for medical services
6-39 provided under this chapter. The rules and standards must include
6-40 a schedule for periodic reevaluation of the rates.
6-41 (b) The commission shall adopt rules establishing a schedule
6-42 of rates based on the rules and standards adopted under Subsection
6-43 (a). In adopting the rate schedule, the commission shall:
6-44 (1) compare the proposed rate schedule to other
6-45 cost-based rates for medical services, including Medicaid and
6-46 Medicare rates; and
6-47 (2) document the reason that any rate exceeds the
6-48 Medicaid or Medicare rate for the same service.
6-49 Sec. 91.031. CONTRACTS FOR SERVICE. (a) The commission
6-50 shall include in its contracts with service providers provisions
6-51 relating to:
6-52 (1) clearly defined and measurable program performance
6-53 standards that directly relate to the service provided;
6-54 (2) clearly defined penalties for nonperformance of a
6-55 contract term; and
6-56 (3) clearly specified accounting, reporting, and
6-57 auditing requirements applicable to money received under the
6-58 contract.
6-59 (b) The commission shall monitor a service provider's
6-60 performance under a contract for service. In monitoring
6-61 performance, the commission shall:
6-62 (1) use a risk-assessment methodology to institute
6-63 statewide monitoring of contract compliance of service providers;
6-64 and
6-65 (2) evaluate service providers based on clearly
6-66 defined and measurable program performance objectives.
6-67 Sec. 91.032. CONTRACTS FOR ADAPTIVE TECHNOLOGY. The
6-68 commission shall include in a contract with a supplier of adaptive
6-69 technology equipment provisions that require the supplier to
7-1 provide training for clients receiving the adaptive technology
7-2 equipment.
7-3 SECTION 9. Chapter 94, Human Resources Code, is amended by
7-4 adding Section 94.016 to read as follows:
7-5 Sec. 94.016. BUSINESS ENTERPRISES PROGRAM. (a) The
7-6 commission is authorized to administer the Business Enterprises
7-7 Program in accordance with the provisions of the Randolph-Sheppard
7-8 Act (20 U.S.C. Section 107 et seq.).
7-9 (b) The commission is authorized to administer a retirement
7-10 program for individuals licensed to operate vending facilities in
7-11 accordance with applicable state and federal laws.
7-12 (c) A trust fund for a retirement program for individuals
7-13 licensed to operate vending facilities under the Business
7-14 Enterprises Program is established with the comptroller of public
7-15 accounts. This trust fund will be set up in the state treasury.
7-16 (d) All federal vending machine income shall be credited to
7-17 this Business Enterprises Program trust fund. Vending machine
7-18 income, as defined by 34 C.F.R. Section 395.1(z), means receipts
7-19 (other than those of a blind vendor) from vending machine
7-20 operations on federal property, after deducting the cost of goods
7-21 sold (including reasonable service and maintenance costs) in
7-22 accordance with customary business practices of commercial vending
7-23 concerns, where the machines are operated, serviced, or maintained
7-24 by, or with the approval of, a department, agency, or
7-25 instrumentality of the United States, or commissions paid (other
7-26 than to a blind vendor) by a commercial vending concern which
7-27 operates, services, and maintains vending machines on federal
7-28 property for, or with the approval of, a department, agency, or
7-29 instrumentality of the United States.
7-30 (e) All expenditures authorized by the Randolph-Sheppard Act
7-31 from federal vending revenue funds shall be paid from the Business
7-32 Enterprises Program trust fund.
7-33 SECTION 10. Subchapter F, Chapter 411, Government Code, is
7-34 amended by adding Section 411.0985 to read as follows:
7-35 Sec. 411.0985. ACCESS TO CRIMINAL HISTORY RECORD
7-36 INFORMATION: TEXAS COMMISSION FOR THE BLIND. (a) The Texas
7-37 Commission for the Blind is entitled to obtain from the department
7-38 criminal history record information maintained by the department
7-39 that relates to a person who is an applicant for employment with
7-40 the commission.
7-41 (b) Criminal history record information obtained by the
7-42 Texas Commission for the Blind under Subsection (a) may be used
7-43 only to evaluate an applicant for employment with the commission.
7-44 (c) The Texas Commission for the Blind may not release or
7-45 disclose information obtained under Subsection (a) except on court
7-46 order.
7-47 (d) After the expiration of any probationary term of the
7-48 person's employment, the Texas Commission for the Blind shall
7-49 destroy all criminal history record information obtained under
7-50 Subsection (a).
7-51 SECTION 11. The changes in law made by this Act in the
7-52 prohibitions applying to members of the Texas Commission for the
7-53 Blind do not affect the entitlement of a member serving on the
7-54 commission immediately before September 1, 1999, to continue to
7-55 carry out the functions of the commission for the remainder of the
7-56 member's term. The changes in law apply only to a member appointed
7-57 on or after September 1, 1999.
7-58 SECTION 12. This Act takes effect September 1, 1999.
7-59 SECTION 13. The importance of this legislation and the
7-60 crowded condition of the calendars in both houses create an
7-61 emergency and an imperative public necessity that the
7-62 constitutional rule requiring bills to be read on three several
7-63 days in each house be suspended, and this rule is hereby suspended.
7-64 * * * * *