By McCall H.B. No. 2085
76R819 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation and functions of the Texas Board and
1-3 Department of Health, including the operation of certain boards and
1-4 councils administratively attached to the department; providing
1-5 administrative penalties.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 ARTICLE 1. GENERAL OPERATIONS AND ADMINISTRATION OF THE TEXAS
1-8 BOARD AND DEPARTMENT OF HEALTH
1-9 SECTION 1.01. Section 2003.021, Government Code, is amended
1-10 by adding Subsection (e) to read as follows:
1-11 (e) The office shall conduct all hearings in contested cases
1-12 under Chapter 2001 that are before the commissioner of health or
1-13 the Texas Board or Department of Health.
1-14 SECTION 1.02. Section 11.003, Health and Safety Code, is
1-15 amended to read as follows:
1-16 Sec. 11.003. Sunset Provision. The Texas Board of Health
1-17 and the Texas Department of Health are subject to Chapter 325,
1-18 Government Code (Texas Sunset Act). Unless continued in existence
1-19 as provided by that chapter, the board and the department are
1-20 abolished and this chapter expires September 1, 2011 [1999].
1-21 SECTION 1.03. Chapter 11, Health and Safety Code, is amended
1-22 by adding Section 11.0045 to read as follows:
1-23 Sec. 11.0045. COMPREHENSIVE STRATEGIC AND OPERATIONAL PLAN.
1-24 (a) The board shall develop, publish, and to the extent allowed by
2-1 law implement a comprehensive strategic and operational plan.
2-2 (b) The board shall publish the plan not later than
2-3 September 1 of each even-numbered year. The board shall at a
2-4 minimum:
2-5 (1) make the plan available on its generally
2-6 accessible Internet site;
2-7 (2) make printed copies of the plan available on
2-8 request to members of the public; and
2-9 (3) send printed copies of the plan to the governor,
2-10 lieutenant governor, speaker of the house of representatives,
2-11 Legislative Budget Board, and the committees of the senate and the
2-12 house of representatives that have oversight responsibilities
2-13 regarding the board and the department.
2-14 (c) The plan at a minimum must include:
2-15 (1) a statement of the aim and purpose of each of the
2-16 department's missions, including:
2-17 (A) the prevention of disease;
2-18 (B) the promotion of health;
2-19 (C) indigent health care;
2-20 (D) acute care services for which the department
2-21 is responsible;
2-22 (E) health care facility regulation for which
2-23 the department is responsible;
2-24 (F) the licensing of health professions for
2-25 which the department is responsible; and
2-26 (G) all other health-related services for which
2-27 the department is responsible under law;
3-1 (2) an analysis regarding how each of the department's
3-2 missions relate to other department missions;
3-3 (3) a detailed analysis of how to integrate or
3-4 continue to integrate department programs with other department
3-5 programs, including the integration of information gathering and
3-6 information management within and across programs, for the purpose
3-7 of minimizing duplication of effort, increasing administrative
3-8 efficiency, simplifying access to department programs, and more
3-9 efficiently meeting the health needs of this state;
3-10 (4) a detailed proposal to integrate or continue to
3-11 integrate department programs with other department programs during
3-12 the two-year period covered by the plan, to the extent allowed by
3-13 law and in accordance with the department's analysis;
3-14 (5) a determination regarding whether it is necessary
3-15 to collect each type of information that the department collects,
3-16 and for each type of information that it is necessary for the
3-17 department to collect, whether the department is efficiently and
3-18 effectively collecting, analyzing, and disseminating the
3-19 information;
3-20 (6) an assessment of services provided by the
3-21 department that evaluates the need for the department to provide
3-22 those services in the future;
3-23 (7) a method for soliciting the advice and opinions of
3-24 local health departments, of recipients and providers of services
3-25 that are related to the department's missions, and of advocates for
3-26 recipients or providers for the purpose of identifying and
3-27 assessing:
4-1 (A) the health-related needs of the state;
4-2 (B) ways in which the department's programs and
4-3 information services can be better integrated and coordinated; and
4-4 (C) factors that the department should consider
4-5 before adopting rules that affect recipients or providers of
4-6 services that are related to the department's missions;
4-7 (8) a comprehensive inventory of health-related
4-8 information resources that meet department criteria for usefulness
4-9 and applicability to local health departments, to recipients or
4-10 providers of services that are related to the department's
4-11 missions, and to nonprofit entities, private businesses, and
4-12 community groups with missions that are related to health;
4-13 (9) a statement regarding the ways in which the
4-14 department will coordinate or attempt to coordinate with federal,
4-15 state, local, and private programs that provide services similar to
4-16 the services provided by the department;
4-17 (10) a list of other plans that the department is
4-18 required to prepare under state law and a recommendation regarding
4-19 which plans are obsolete or duplicate other required department
4-20 plans; and
4-21 (11) an assessment of the extent to which previous
4-22 plans prepared by the department under this section have
4-23 effectively helped the department to identify and achieve its
4-24 objectives, to improve its operations, or to guide persons who need
4-25 to identify department services, identify department requirements,
4-26 or communicate effectively with department personnel.
4-27 SECTION 1.04. Chapter 11, Health and Safety Code, is amended
5-1 by adding Section 11.0055 to read as follows:
5-2 Sec. 11.0055. REQUIRED BOARD MEMBER TRAINING. (a) A person
5-3 who is appointed to and qualifies for office as a member of the
5-4 board may not vote, deliberate, or be counted as a member in
5-5 attendance at a meeting of the board until the person completes a
5-6 training program that complies with this section.
5-7 (b) The training program must provide the person with
5-8 information regarding:
5-9 (1) the legislation that created the department and
5-10 the board;
5-11 (2) the programs operated by the department;
5-12 (3) the role and functions of the department;
5-13 (4) the rules of the department with an emphasis on
5-14 the rules that relate to disciplinary and investigatory authority;
5-15 (5) the current budget for the department;
5-16 (6) the results of the most recent formal audit of the
5-17 department;
5-18 (7) the requirements of:
5-19 (A) the open meetings law, Chapter 551,
5-20 Government Code;
5-21 (B) the public information law, Chapter 552,
5-22 Government Code;
5-23 (C) the administrative procedure law, Chapter
5-24 2001, Government Code; and
5-25 (D) other laws relating to public officials,
5-26 including conflict-of-interest laws; and
5-27 (8) any applicable ethics policies adopted by the
6-1 department or the Texas Ethics Commission.
6-2 (c) A person appointed to the board is entitled to
6-3 reimbursement, as provided by the General Appropriations Act, for
6-4 the travel expenses incurred in attending the training program
6-5 regardless of whether the attendance at the program occurs before
6-6 or after the person qualifies for office.
6-7 SECTION 1.05. Section 11.006(a), Health and Safety Code, is
6-8 amended to read as follows:
6-9 (a) A person is not eligible for appointment as a public
6-10 member of the board if the person or the person's spouse:
6-11 (1) is employed by or participates in the management
6-12 of a business entity or other organization regulated by the
6-13 department or receiving funds from the department;
6-14 (2) is registered, certified, or licensed by the
6-15 department or by a regulatory board or other agency that is under
6-16 the jurisdiction of the department or administratively attached to
6-17 the department;
6-18 (3) owns, controls, or has, directly or indirectly,
6-19 more than a 10 percent interest in a business entity or other
6-20 organization regulated by the department or receiving funds from
6-21 the department; or
6-22 (4) [(3)] uses or receives a substantial amount of
6-23 tangible goods, services, or funds from the department other than
6-24 compensation or reimbursement authorized by law for board
6-25 membership, attendance, or expenses.
6-26 SECTION 1.06. SECTION 11.009(c), Health and Safety Code, is
6-27 amended to read as follows:
7-1 (c) If the commissioner has knowledge that a potential
7-2 ground for removal exists, the commissioner shall notify the
7-3 chairman of the board of the ground. The chairman shall then
7-4 notify the governor and the attorney general that a potential
7-5 ground for removal exists. If the potential ground for removal
7-6 involves the chairman, the commissioner shall notify the next
7-7 highest ranking officer of the board, who shall then notify the
7-8 governor and the attorney general that a potential ground for
7-9 removal exists.
7-10 SECTION 1.07. Section 11.018(d), Health and Safety Code, is
7-11 amended to read as follows:
7-12 (d) The department shall keep an information file about each
7-13 complaint filed with the department relating to[:]
7-14 [(1)] a license holder or entity regulated by the
7-15 department[;] or
7-16 [(2)] a service delivered by the department. The file
7-17 must include:
7-18 (1) the name of the person who filed the complaint;
7-19 (2) the date the complaint is received by the
7-20 department;
7-21 (3) the subject matter of the complaint;
7-22 (4) the name of each person contacted in relation to
7-23 the complaint;
7-24 (5) a summary of the results of the review or
7-25 investigation of the complaint; and
7-26 (6) an explanation of the reason the file was closed,
7-27 if the department closed the file without taking action other than
8-1 to investigate the complaint.
8-2 SECTION 1.08. Subchapter A, Chapter 12, Health and Safety
8-3 Code, is amended by adding Section 12.004 to read as follows:
8-4 Sec. 12.004. DEVELOPMENT OF PROPOSED RULES. (a) This
8-5 section applies to the process by which the department develops
8-6 proposed rules for the board's consideration before the proposed
8-7 rules are published in the Texas Register and before the board,
8-8 commissioner, or department comply with the rulemaking requirements
8-9 of the administrative procedure law, Chapter 2001, Government Code.
8-10 This section does not affect the duty of the board, commissioner,
8-11 or department to comply with the rulemaking requirements of that
8-12 law.
8-13 (b) The board shall require the department to establish a
8-14 checklist of methods that, to the extent appropriate, the
8-15 department will follow to obtain early in the rule development
8-16 process the advice and opinions of the public and of persons who
8-17 will be most affected by a proposed rule. The checklist must
8-18 include methods for identifying persons who will be most affected
8-19 and for soliciting at a minimum the advice and opinions of affected
8-20 local health departments, of recipients and providers of affected
8-21 services, and of advocates for affected recipients or providers.
8-22 (c) The checklist may include negotiated rulemaking,
8-23 informal conferences, advisory committees, and any other
8-24 appropriate method.
8-25 (d) A rule adopted by the board may not be challenged on the
8-26 grounds that the board, commissioner, or department did not comply
8-27 with this section. If the department was unable to solicit a
9-1 significant amount of advice and opinion from the public or from
9-2 affected persons early in the rule development process, the
9-3 department shall state in writing to the board the reasons why the
9-4 department was unable to do so.
9-5 SECTION 1.09. Subchapter B, Chapter 12, Health and Safety
9-6 Code, is amended by adding Section 12.0115 to read as follows:
9-7 Sec. 12.0115. INTEGRATION OF HEALTH CARE DELIVERY PROGRAMS.
9-8 (a) In this section, "health care delivery programs" includes the
9-9 department's primary health care services program, its program to
9-10 improve maternal and infant health, its services for chronically
9-11 ill and disabled children, any aspects of health care delivery
9-12 under the state Medicaid program assigned to the department by law
9-13 or by the Health and Human Services Commission, and the part of any
9-14 other department program concerned with the department's
9-15 responsibility for the delivery of health care services.
9-16 (b) The department shall integrate the functions of its
9-17 different health care delivery programs to the maximum extent
9-18 possible, including integrating the functions of health care
9-19 delivery programs that are part of the state Medicaid program with
9-20 functions of health care delivery programs that are not part of the
9-21 state Medicaid program.
9-22 (c) At a minimum, the department's integration of the
9-23 functions of its different health care delivery programs must
9-24 include the integration within and across the programs of:
9-25 (1) the development of health care policy;
9-26 (2) the delivery of health care services, to the
9-27 extent appropriate for the recipients of the health care services;
10-1 and
10-2 (3) to the extent possible, the administration of
10-3 contracts with providers of health care services, particularly
10-4 providers who concurrently provide health care services under more
10-5 than one contract or program with the department.
10-6 (d) One of the primary goals of the department in
10-7 integrating the delivery of health care services for the benefit of
10-8 recipients shall be providing for continuity of care for
10-9 individuals and families, accomplished to the extent possible by
10-10 providing an individual or family with a medical home that serves
10-11 as the primary initial health care provider.
10-12 (e) One of the primary goals of the department in
10-13 integrating the administration of its contracts with providers of
10-14 health care services shall be designing an integrated contract
10-15 administration system that reduces the administrative and paperwork
10-16 burden on providers while still providing the department with the
10-17 information it needs to effectively administer the contracts. The
10-18 department's integration of contract administration must include:
10-19 (1) the integration of the initial procurement process
10-20 within and across programs, at least in part by efficiently
10-21 combining requests for bids or proposals within or across programs
10-22 to the extent it reduces the administrative burden for providers;
10-23 (2) the establishment of uniform contract terms,
10-24 including:
10-25 (A) contract terms that require information from
10-26 providers, or that prescribe performance standards for providers,
10-27 that could be made uniform within or across programs while
11-1 remaining effective as contract terms; and
11-2 (B) the establishment of a procedure under which
11-3 a contractor or a person responding to a request for bids or
11-4 proposals may supply the department with requested information
11-5 whenever possible by referencing current and correct information
11-6 previously supplied to and on file with the department;
11-7 (3) the integration of contract monitoring,
11-8 particularly with regard to monitoring providers that deliver
11-9 health services for the department under more than one contract or
11-10 under more than one department program; and
11-11 (4) the integration of reimbursement methods:
11-12 (A) particularly for a provider that delivers
11-13 health services for the department under more than one contract or
11-14 under more than one department program; and
11-15 (B) including the application across programs of
11-16 the most effective and efficient reimbursement technologies or
11-17 methods that are available to the department under any of its
11-18 programs.
11-19 (f) The department shall examine the extent to which the
11-20 department could integrate all or part of its health care delivery
11-21 programs into a single managed care delivery system using one or
11-22 more managed care providers.
11-23 (g) If a federal requirement that the federal government may
11-24 waive restricts the department's integration efforts under this
11-25 section, the department may seek a waiver of the requirement from
11-26 the federal government. If the waiver affects a program for which
11-27 another state agency is designated the single state agency for
12-1 federal purposes, the department shall request the single state
12-2 agency to seek the waiver.
12-3 (h) The department may not integrate health care delivery
12-4 programs under this section in a way that affects the single state
12-5 agency status of another state agency for federal purposes without
12-6 obtaining the approval of the Health and Human Services Commission
12-7 and any necessary federal approval.
12-8 SECTION 1.10. Subchapter B, Chapter 12, Health and Safety
12-9 Code, is amended by adding Sections 12.0123 and 12.0124 to read as
12-10 follows:
12-11 Sec. 12.0123. ANNUAL EXTERNAL AUDIT OF MEDICAID FISCAL
12-12 AGENT. (a) In this section, "fiscal agent" means an entity that
12-13 is not another state health and human services agency that, under a
12-14 contract and on behalf of the department or the department's
12-15 successor in function, performs one or more administrative services
12-16 such as claims processing, utilization review, or payment of claims
12-17 as the department's fiscal intermediary.
12-18 (b) The department shall contract with an independent
12-19 auditor to perform annual independent external financial and
12-20 performance audits of any fiscal agent used by the department in
12-21 its operation of a part of the state Medicaid program.
12-22 (c) If another state agency succeeds to the department's
12-23 operation of the part of the state Medicaid program for which the
12-24 department used a fiscal agent, the successor agency shall comply
12-25 with the requirement to contract with an independent auditor to
12-26 perform the external financial and performance audits of any fiscal
12-27 agent.
13-1 Sec. 12.0124. ELECTRONIC FUNDS TRANSFER REQUIREMENT FOR
13-2 MEDICAID FISCAL INTERMEDIARY. A fiscal intermediary who makes
13-3 payments to service providers on behalf of the department or the
13-4 department's successor in function in relation to the department's
13-5 operation of a part of the state Medicaid program shall make the
13-6 payments using electronic funds transfer.
13-7 SECTION 1.11. Subchapter B, Chapter 12, Health and Safety
13-8 Code, is amended by adding Sections 12.0145 and 12.0146 to read as
13-9 follows:
13-10 Sec. 12.0145. INFORMATION ABOUT ENFORCEMENT ACTIONS. (a)
13-11 The department shall publish and provide information in accordance
13-12 with this section regarding each final enforcement action taken by
13-13 the department, commissioner, or board against a person or facility
13-14 regulated by the department in which any kind of sanction is
13-15 imposed, including:
13-16 (1) the imposition of a reprimand, a period of
13-17 probation, a monetary penalty, or a condition on a person's
13-18 continued practice or a facility's continued operation; and
13-19 (2) the refusal to renew or the suspension, probation,
13-20 or revocation of a license or other form of permission to engage in
13-21 an activity.
13-22 (b) Except to the extent that the information is
13-23 specifically made confidential under other law, the department
13-24 shall publish and provide the name, including any trade name, of
13-25 the person or facility against which an enforcement action was
13-26 taken, the violation that the person or facility was found to have
13-27 committed, and the sanction imposed. The department shall publish
14-1 and provide the information in a way that does not serve to
14-2 identify a complainant.
14-3 (c) The department shall publish the information on its
14-4 generally accessible Internet site. The department also shall
14-5 provide the information by establishing a system under which
14-6 members of the public can call toll-free numbers to obtain the
14-7 information efficiently and with a minimum of delay. The
14-8 department shall appropriately publicize the toll-free numbers.
14-9 (d) The department shall publish and provide the information
14-10 promptly after the sanction has been imposed or, when applicable,
14-11 promptly after the period during which the sanction is imposed has
14-12 begun. The department by rule shall establish the length of time
14-13 during which the required information will be published and
14-14 provided under this section based on the department's determination
14-15 regarding the types of services provided by regulated entities and
14-16 the length of time for which information about a category of
14-17 enforcement actions is useful to a member of the public.
14-18 (e) The department shall publish and provide the information
14-19 using clear language that can be readily understood by a person
14-20 with a high school education.
14-21 (f) If another law specifically requires that particular
14-22 information subject to this section shall be published in another
14-23 manner, the department shall comply with this section and with the
14-24 other law.
14-25 (g) A determination that the department is not required to
14-26 publish and provide information under this section does not affect
14-27 a determination regarding whether the information is subject to
15-1 required disclosure under the open records law, Chapter 552,
15-2 Government Code. The department's determination regarding the
15-3 length of the period during which information should continue to be
15-4 published and provided under this section does not affect a
15-5 determination regarding the period for which the information must
15-6 be preserved under Chapter 441, Government Code, or under another
15-7 law.
15-8 Sec. 12.0146. TRENDS IN ENFORCEMENT. The department shall
15-9 publish annually an analysis of its enforcement actions taken under
15-10 state law with regard to each profession, industry, or type of
15-11 facility regulated by the department. The analysis for each
15-12 regulatory area must show at a minimum the year-to-year trends in
15-13 the number and types of enforcement actions taken by the department
15-14 in its regulation of the profession, industry, or type of facility.
15-15 SECTION 1.12. Section 466.001(a), Health and Safety Code, is
15-16 amended to read as follows:
15-17 (a) It is the intent of the legislature that the department
15-18 [and the commission] exercise its [their respective] administrative
15-19 powers and regulatory authority to ensure the proper use of
15-20 approved narcotic drugs in the treatment of narcotic dependent
15-21 persons.
15-22 SECTION 1.13. Section 466.002, Health and Safety Code, is
15-23 amended to read as follows:
15-24 Sec. 466.002. DEFINITIONS. In this chapter:
15-25 (1) "Approved narcotic drug" means a drug approved by
15-26 the United States Food and Drug Administration for maintenance or
15-27 detoxification of a person physiologically addicted to the opiate
16-1 class of drugs.
16-2 (2) "Authorized agent" means an employee of the
16-3 department who is designated by the commissioner to enforce this
16-4 chapter.
16-5 (3) "Board" means the Texas Board of Health.
16-6 (4) ["Commission" means the Texas Commission on
16-7 Alcohol and Drug Abuse.]
16-8 [(5)] "Commissioner" means the commissioner of health.
16-9 (5) [(6)] "Department" means the Texas Department of
16-10 Health.
16-11 (6) [(7)] "Facility" includes a medical office, an
16-12 outpatient clinic, a general or special hospital, a community
16-13 mental health center, and any other location in which a structured
16-14 narcotic dependency program is conducted.
16-15 (7) [(8)] "Narcotic drug" has the meaning assigned by
16-16 Chapter 481 (Texas Controlled Substances Act).
16-17 SECTION 1.14. Section 466.004(a), Health and Safety Code, is
16-18 amended to read as follows:
16-19 (a) The board shall adopt and the department shall
16-20 administer and enforce rules to ensure the proper use of approved
16-21 narcotic drugs in the treatment of narcotic drug-dependent persons,
16-22 including rules that:
16-23 (1) require an applicant or a permit holder to make
16-24 annual, periodic, and special reports that the department
16-25 determines are necessary;
16-26 (2) require an applicant or permit holder to keep
16-27 records that the department determines are necessary;
17-1 (3) provide for investigations that the department
17-2 determines are necessary; and
17-3 (4) provide for the coordination of the approval of
17-4 narcotic drug treatment programs by the United States Food and Drug
17-5 Administration and the United States Drug Enforcement
17-6 Administration[; and]
17-7 [(5) provide for cooperation with the commission in
17-8 the licensing of narcotic drug treatment programs as required by
17-9 Subchapter A, Chapter 464].
17-10 SECTION 1.15. Section 466.022, Health and Safety Code, is
17-11 amended to read as follows:
17-12 Sec. 466.022. LIMITATION ON PRESCRIPTION, ORDER, OR
17-13 ADMINISTRATION OF NARCOTIC DRUG. A physician may not prescribe,
17-14 order, or administer a narcotic drug for the purpose of treating
17-15 drug dependency unless the physician prescribes, orders, or
17-16 administers an approved narcotic drug for the maintenance or
17-17 detoxification of drug-dependent persons as part of a program
17-18 permitted by the department [and the commission].
17-19 SECTION 1.16. Section 466.005, Health and Safety Code, is
17-20 repealed.
17-21 SECTION 1.17. Section 503.008, Health and Safety Code, is
17-22 repealed.
17-23 SECTION 1.18. The Texas Department of Health shall publish
17-24 the first comprehensive strategic and operational plan required
17-25 under Section 11.0045, Health and Safety Code, as added by this
17-26 Act, not later than September 1, 2000.
17-27 SECTION 1.19. The Texas Department of Health shall
18-1 comprehensively study the impact that the state's Medicaid managed
18-2 care program has had on each of the populations served by the
18-3 department and on all health care providers, clinics, and
18-4 hospitals. The department shall report its findings to the
18-5 presiding officer of each house of the legislature and of each
18-6 legislative committee that has oversight responsibility for the
18-7 department not later than November 1, 2000.
18-8 SECTION 1.20. (a) As soon as possible after the effective
18-9 date of this Act and to the extent allowed under federal law, the
18-10 Texas Department of Health shall implement a pilot project that, on
18-11 a scale appropriate for a pilot project, integrates all appropriate
18-12 functions of the department's health care delivery programs in
18-13 accordance with Section 12.0115, Health and Safety Code, as added
18-14 by this Act, including integrating the functions of health care
18-15 delivery programs that are part of the state Medicaid program with
18-16 functions of health care delivery programs that are not part of the
18-17 state Medicaid program.
18-18 (b) The pilot project must be initiated not later than
18-19 September 1, 2000. The pilot project terminates September 1, 2001,
18-20 but the department may continue successful elements of the project
18-21 after that date as part of the department's general duty to
18-22 integrate its health care delivery programs under Section 12.0115,
18-23 Health and Safety Code, as added by this Act.
18-24 (c) The department shall make an interim report regarding
18-25 its problems and progress in implementing the pilot project not
18-26 later than September 1, 2000, as part of the initial comprehensive
18-27 strategic and operational plan required under Section 11.0045,
19-1 Health and Safety Code, as added by this Act. The department shall
19-2 fully evaluate the successes and problems of the completed pilot
19-3 project as part of the comprehensive strategic and operational plan
19-4 that the department is required to publish not later than September
19-5 1, 2002.
19-6 (d) In addition to reporting on the problems and successes
19-7 of the pilot project, the department shall evaluate generally the
19-8 duties imposed on the department under Section 12.0115, Health and
19-9 Safety Code, as added by this Act. The department shall report not
19-10 later than September 1, 2002, as part of the second comprehensive
19-11 strategic and operational plan, on the benefits and problems that
19-12 the department foresees in fully implementing Section 12.0115. The
19-13 second comprehensive report shall:
19-14 (1) state the ways in which the department intends to
19-15 integrate its programs;
19-16 (2) demonstrate why it is expected that the
19-17 department's approach will best promote the goals of program
19-18 integration, with regard to expected benefits to recipients and
19-19 providers of health services and with regard to administrative
19-20 savings expected to be realized by government and by providers of
19-21 health services;
19-22 (3) address the extent to which the department has
19-23 implemented or plans to implement a uniform contracting process
19-24 that incorporates processes and principles identified by the
19-25 department's contract leverage team in its July 1996 Contracting
19-26 Guide for Client Services, and state the expected savings and
19-27 efficiencies that have resulted or should result from
20-1 implementation;
20-2 (4) state the ways in which the department's plan to
20-3 integrate the functions of its health care delivery programs
20-4 includes a plan to coordinate contract performance monitoring,
20-5 combine claims processing, and improve the process by which
20-6 providers are reimbursed; and
20-7 (5) recommend any changes to state law that are needed
20-8 to remove impediments to an integrated health care delivery system.
20-9 SECTION 1.21. (a) The Texas Department of Health, with the
20-10 assistance of the state auditor, shall conduct a comprehensive
20-11 evaluation of the department's regulatory functions. The
20-12 evaluation must include an examination and analysis of the
20-13 effectiveness of the department's:
20-14 (1) rules that affect or support its regulatory
20-15 practices;
20-16 (2) inspection efforts, including its scheduling of
20-17 inspections;
20-18 (3) investigative practices, including investigations
20-19 conducted in response to a complaint;
20-20 (4) use of sanctions;
20-21 (5) enforcement actions in relation to the time it
20-22 takes to initiate and complete an enforcement action and in
20-23 relation to the role of the department's office of general counsel;
20-24 and
20-25 (6) efforts to ensure compliance with applicable laws
20-26 and rules.
20-27 (b) The department shall report the results of the
21-1 evaluation, including the identification of any problem areas and
21-2 any recommended solutions to the problems that require management
21-3 actions or statutory changes, to the legislature and to the Texas
21-4 Board of Health not later than November 1, 2000.
21-5 SECTION 1.22. (a) The change in law made by this Act to
21-6 Chapter 2003.021, Government Code, transferring the responsibility
21-7 to conduct hearings in matters that are contested cases under
21-8 Chapter 2001, Government Code, from the commissioner of health and
21-9 the Texas Board or Department of Health to the State Office of
21-10 Administrative Hearings, applies only to a contested case in which
21-11 notice of the hearing is given under Sections 2001.051 and
21-12 2001.052, Government Code, on or after the effective date of this
21-13 Act. The commissioner of health or the Texas Board or Department
21-14 of Health, as appropriate, shall conduct the hearing in a contested
21-15 case for which the notice of hearing is given before the effective
21-16 date of this Act.
21-17 (b) This Act does not transfer from the commissioner of
21-18 health or the Texas Board or Department of Health, as appropriate,
21-19 the responsibility to conduct a fair hearing that is required under
21-20 federal law unless the fair hearing is considered to be a contested
21-21 case under Chapter 2001, Government Code.
21-22 (c) This Act does not require the commissioner of health or
21-23 the Texas Board or Department of Health to transfer personnel to
21-24 the State Office of Administrative Hearings.
21-25 SECTION 1.23. The changes in law made by this Act in the
21-26 prohibitions applying to members of the Texas Board of Health do
21-27 not affect the entitlement of a member serving on the board
22-1 immediately before September 1, 1999, to continue to serve and
22-2 function as a member of the board for the remainder of the member's
22-3 term. The changes in law apply only to a member appointed on or
22-4 after September 1, 1999.
22-5 ARTICLE 2. AMBULATORY SURGICAL CENTERS; ADMINISTRATIVE
22-6 PENALTIES
22-7 SECTION 2.01. Chapter 243, Health and Safety Code, is
22-8 amended by adding Sections 243.015 and 243.016 to read as follows:
22-9 Sec. 243.015. IMPOSITION OF ADMINISTRATIVE PENALTY. (a)
22-10 The department may impose an administrative penalty on a person
22-11 licensed under this chapter who violates this chapter or a rule or
22-12 order adopted under this chapter. A penalty collected under this
22-13 section or Section 243.016 shall be deposited in the state treasury
22-14 in the general revenue fund.
22-15 (b) A proceeding to impose the penalty is considered to be a
22-16 contested case under Chapter 2001, Government Code.
22-17 (c) The amount of the penalty may not exceed $1,000 for each
22-18 violation, and each day a violation continues or occurs is a
22-19 separate violation for purposes of imposing a penalty.
22-20 (d) The amount shall be based on:
22-21 (1) the seriousness of the violation, including the
22-22 nature, circumstances, extent, and gravity of the violation;
22-23 (2) the threat to health or safety caused by the
22-24 violation;
22-25 (3) the history of previous violations;
22-26 (4) the amount necessary to deter a future violation;
22-27 (5) whether the violator demonstrated good faith,
23-1 including when applicable whether the violator made good faith
23-2 efforts to correct the violation; and
23-3 (6) any other matter that justice may require.
23-4 (e) If the department initially determines that a violation
23-5 occurred, the department shall issue a report stating:
23-6 (1) the facts on which the determination is based; and
23-7 (2) the department's recommendation on the imposition
23-8 of the penalty, including a recommendation on the amount of the
23-9 penalty.
23-10 (f) Within 14 days after the date the report under
23-11 Subsection (e) is issued, the commissioner of health shall give
23-12 written notice of the report by certified mail to the person.
23-13 (g) The notice under Subsection (f) must:
23-14 (1) include a brief summary of the alleged violation;
23-15 (2) state the amount of the recommended penalty; and
23-16 (3) inform the person of the person's right to a
23-17 hearing on the occurrence of the violation, the amount of the
23-18 penalty, or both.
23-19 (h) Within 20 days after the date the person receives the
23-20 notice under Subsection (f), the person in writing may:
23-21 (1) accept the determination and recommended penalty
23-22 of the department; or
23-23 (2) make a request for a hearing on the occurrence of
23-24 the violation, the amount of the penalty, or both.
23-25 (i) If the person accepts the determination and recommended
23-26 penalty of the department, the commissioner of health by order
23-27 shall approve the determination and impose the recommended penalty.
24-1 (j) If the person requests a hearing or fails to respond in
24-2 a timely manner to the notice, the commissioner of health shall
24-3 refer the matter to the State Office of Administrative Hearings,
24-4 which shall promptly set a hearing date and give written notice of
24-5 the time and place of the hearing to the person. An administrative
24-6 law judge of the State Office of Administrative Hearings shall
24-7 conduct the hearing.
24-8 (k) The administrative law judge shall make findings of fact
24-9 and conclusions of law and promptly issue to the commissioner of
24-10 health a proposal for a decision about the occurrence of the
24-11 violation and the amount of a proposed penalty.
24-12 (l) Based on the findings of fact, conclusions of law, and
24-13 proposal for a decision, the commissioner of health by order may:
24-14 (1) find that a violation occurred and impose a
24-15 penalty; or
24-16 (2) find that a violation did not occur.
24-17 (m) The notice of the commissioner's order under Subsection
24-18 (l) that is sent to the person in accordance with Chapter 2001,
24-19 Government Code, must include a statement of the right of the
24-20 person to judicial review of the order.
24-21 Sec. 243.016. PAYMENT AND COLLECTION OF ADMINISTRATIVE
24-22 PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
24-23 order of the commissioner of health under Section 243.015(l) that
24-24 imposes an administrative penalty becomes final, the person shall:
24-25 (1) pay the penalty; or
24-26 (2) file a petition for judicial review of the
24-27 commissioner's order contesting the occurrence of the violation,
25-1 the amount of the penalty, or both.
25-2 (b) Within the 30-day period prescribed by Subsection (a), a
25-3 person who files a petition for judicial review may:
25-4 (1) stay enforcement of the penalty by:
25-5 (A) paying the penalty to the court for
25-6 placement in an escrow account; or
25-7 (B) giving the court a supersedeas bond approved
25-8 by the court that:
25-9 (i) is for the amount of the penalty; and
25-10 (ii) is effective until all judicial
25-11 review of the commissioner's order is final; or
25-12 (2) request the court to stay enforcement of the
25-13 penalty by:
25-14 (A) filing with the court a sworn affidavit of
25-15 the person stating that the person is financially unable to pay the
25-16 penalty and is financially unable to give the supersedeas bond; and
25-17 (B) sending a copy of the affidavit to the
25-18 commissioner of health by certified mail.
25-19 (c) If the commissioner of health receives a copy of an
25-20 affidavit under Subsection (b)(2), the commissioner may file with
25-21 the court, within five days after the date the copy is received, a
25-22 contest to the affidavit. The court shall hold a hearing on the
25-23 facts alleged in the affidavit as soon as practicable and shall
25-24 stay the enforcement of the penalty on finding that the alleged
25-25 facts are true. The person who files an affidavit has the burden
25-26 of proving that the person is financially unable to pay the penalty
25-27 or to give a supersedeas bond.
26-1 (d) If the person does not pay the penalty and the
26-2 enforcement of the penalty is not stayed, the penalty may be
26-3 collected. The attorney general may sue to collect the penalty.
26-4 (e) If the court sustains the finding that a violation
26-5 occurred, the court may uphold or reduce the amount of the penalty
26-6 and order the person to pay the full or reduced amount of the
26-7 penalty.
26-8 (f) If the court does not sustain the finding that a
26-9 violation occurred, the court shall order that a penalty is not
26-10 owed.
26-11 (g) If the person paid the penalty and if the amount of the
26-12 penalty is reduced or the penalty is not upheld by the court, the
26-13 court shall order, when the court's judgment becomes final, that
26-14 the appropriate amount plus accrued interest be remitted to the
26-15 person within 30 days after the date that the judgment of the court
26-16 becomes final. The interest accrues at the rate charged on loans to
26-17 depository institutions by the New York Federal Reserve Bank. The
26-18 interest shall be paid for the period beginning on the date the
26-19 penalty is paid and ending on the date the penalty is remitted.
26-20 (h) If the person gave a supersedeas bond and the penalty is
26-21 not upheld by the court, the court shall order, when the court's
26-22 judgment becomes final, the release of the bond. If the person gave
26-23 a supersedeas bond and the amount of the penalty is reduced, the
26-24 court shall order the release of the bond after the person pays the
26-25 reduced amount.
26-26 ARTICLE 3. BIRTHING CENTERS; ADMINISTRATIVE PENALTIES
26-27 SECTION 3.01. Chapter 244, Health and Safety Code, is
27-1 amended by adding Sections 244.015 and 244.016 to read as follows:
27-2 Sec. 244.015. IMPOSITION OF ADMINISTRATIVE PENALTY. (a)
27-3 The department may impose an administrative penalty on a person
27-4 licensed under this chapter who violates this chapter or a rule or
27-5 order adopted under this chapter. A penalty collected under this
27-6 section or Section 244.016 shall be deposited in the state treasury
27-7 in the general revenue fund.
27-8 (b) A proceeding to impose the penalty is considered to be a
27-9 contested case under Chapter 2001, Government Code.
27-10 (c) The amount of the penalty may not exceed $1,000 for each
27-11 violation, and each day a violation continues or occurs is a
27-12 separate violation for purposes of imposing a penalty.
27-13 (d) The amount shall be based on:
27-14 (1) the seriousness of the violation, including the
27-15 nature, circumstances, extent, and gravity of the violation;
27-16 (2) the threat to health or safety caused by the
27-17 violation;
27-18 (3) the history of previous violations;
27-19 (4) the amount necessary to deter a future violation;
27-20 (5) whether the violator demonstrated good faith,
27-21 including when applicable whether the violator made good faith
27-22 efforts to correct the violation; and
27-23 (6) any other matter that justice may require.
27-24 (e) If the department initially determines that a violation
27-25 occurred, the department shall issue a report stating:
27-26 (1) the facts on which the determination is based; and
27-27 (2) the department's recommendation on the imposition
28-1 of the penalty, including a recommendation on the amount of the
28-2 penalty.
28-3 (f) Within 14 days after the date the report under
28-4 Subsection (e) is issued, the commissioner of health shall give
28-5 written notice of the report by certified mail to the person.
28-6 (g) The notice under Subsection (f) must:
28-7 (1) include a brief summary of the alleged violation;
28-8 (2) state the amount of the recommended penalty; and
28-9 (3) inform the person of the person's right to a
28-10 hearing on the occurrence of the violation, the amount of the
28-11 penalty, or both.
28-12 (h) Within 20 days after the date the person receives the
28-13 notice under Subsection (f), the person in writing may:
28-14 (1) accept the determination and recommended penalty
28-15 of the department; or
28-16 (2) make a request for a hearing on the occurrence of
28-17 the violation, the amount of the penalty, or both.
28-18 (i) If the person accepts the determination and recommended
28-19 penalty of the department, the commissioner of health by order
28-20 shall approve the determination and impose the recommended penalty.
28-21 (j) If the person requests a hearing or fails to respond in
28-22 a timely manner to the notice, the commissioner of health shall
28-23 refer the matter to the State Office of Administrative Hearings,
28-24 which shall promptly set a hearing date and give written notice of
28-25 the time and place of the hearing to the person. An administrative
28-26 law judge of the State Office of Administrative Hearings shall
28-27 conduct the hearing.
29-1 (k) The administrative law judge shall make findings of fact
29-2 and conclusions of law and promptly issue to the commissioner of
29-3 health a proposal for a decision about the occurrence of the
29-4 violation and the amount of a proposed penalty.
29-5 (l) Based on the findings of fact, conclusions of law, and
29-6 proposal for a decision, the commissioner of health by order may:
29-7 (1) find that a violation occurred and impose a
29-8 penalty; or
29-9 (2) find that a violation did not occur.
29-10 (m) The notice of the commissioner's order under Subsection
29-11 (l) that is sent to the person in accordance with Chapter 2001,
29-12 Government Code, must include a statement of the right of the
29-13 person to judicial review of the order.
29-14 Sec. 244.016. PAYMENT AND COLLECTION OF ADMINISTRATIVE
29-15 PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
29-16 order of the commissioner of health under Section 244.015(l) that
29-17 imposes an administrative penalty becomes final, the person shall:
29-18 (1) pay the penalty; or
29-19 (2) file a petition for judicial review of the
29-20 commissioner's order contesting the occurrence of the violation,
29-21 the amount of the penalty, or both.
29-22 (b) Within the 30-day period prescribed by Subsection (a), a
29-23 person who files a petition for judicial review may:
29-24 (1) stay enforcement of the penalty by:
29-25 (A) paying the penalty to the court for
29-26 placement in an escrow account; or
29-27 (B) giving the court a supersedeas bond approved
30-1 by the court that:
30-2 (i) is for the amount of the penalty; and
30-3 (ii) is effective until all judicial
30-4 review of the commissioner's order is final; or
30-5 (2) request the court to stay enforcement of the
30-6 penalty by:
30-7 (A) filing with the court a sworn affidavit of
30-8 the person stating that the person is financially unable to pay the
30-9 penalty and is financially unable to give the supersedeas bond; and
30-10 (B) sending a copy of the affidavit to the
30-11 commissioner of health by certified mail.
30-12 (c) If the commissioner of health receives a copy of an
30-13 affidavit under Subsection (b)(2), the commissioner may file with
30-14 the court, within five days after the date the copy is received, a
30-15 contest to the affidavit. The court shall hold a hearing on the
30-16 facts alleged in the affidavit as soon as practicable and shall
30-17 stay the enforcement of the penalty on finding that the alleged
30-18 facts are true. The person who files an affidavit has the burden
30-19 of proving that the person is financially unable to pay the penalty
30-20 or to give a supersedeas bond.
30-21 (d) If the person does not pay the penalty and the
30-22 enforcement of the penalty is not stayed, the penalty may be
30-23 collected. The attorney general may sue to collect the penalty.
30-24 (e) If the court sustains the finding that a violation
30-25 occurred, the court may uphold or reduce the amount of the penalty
30-26 and order the person to pay the full or reduced amount of the
30-27 penalty.
31-1 (f) If the court does not sustain the finding that a
31-2 violation occurred, the court shall order that a penalty is not
31-3 owed.
31-4 (g) If the person paid the penalty and if the amount of the
31-5 penalty is reduced or the penalty is not upheld by the court, the
31-6 court shall order, when the court's judgment becomes final, that
31-7 the appropriate amount plus accrued interest be remitted to the
31-8 person within 30 days after the date that the judgment of the court
31-9 becomes final. The interest accrues at the rate charged on loans to
31-10 depository institutions by the New York Federal Reserve Bank. The
31-11 interest shall be paid for the period beginning on the date the
31-12 penalty is paid and ending on the date the penalty is remitted.
31-13 (h) If the person gave a supersedeas bond and the penalty is
31-14 not upheld by the court, the court shall order, when the court's
31-15 judgment becomes final, the release of the bond. If the person gave
31-16 a supersedeas bond and the amount of the penalty is reduced, the
31-17 court shall order the release of the bond after the person pays the
31-18 reduced amount.
31-19 ARTICLE 4. SPECIAL CARE FACILITIES; ADMINISTRATIVE PENALTIES
31-20 SECTION 4.01. Chapter 248, Health and Safety Code, is
31-21 amended by adding Subchapter D to read as follows:
31-22 SUBCHAPTER D. ADMINISTRATIVE PENALTY
31-23 Sec. 248.101. IMPOSITION OF PENALTY. (a) The department of
31-24 health may impose an administrative penalty on a person licensed
31-25 under this chapter who violates this chapter or a rule or order
31-26 adopted under this chapter.
31-27 (b) A penalty collected under this subchapter shall be
32-1 deposited in the state treasury in the general revenue fund.
32-2 Sec. 248.102. AMOUNT OF PENALTY. (a) The amount of the
32-3 penalty may not exceed $1,000 for each violation, and each day a
32-4 violation continues or occurs is a separate violation for purposes
32-5 of imposing a penalty.
32-6 (b) The amount shall be based on:
32-7 (1) the seriousness of the violation, including the
32-8 nature, circumstances, extent, and gravity of the violation;
32-9 (2) the threat to health or safety caused by the
32-10 violation;
32-11 (3) the history of previous violations;
32-12 (4) the amount necessary to deter a future violation;
32-13 (5) whether the violator demonstrated good faith,
32-14 including when applicable whether the violator made good faith
32-15 efforts to correct the violation; and
32-16 (6) any other matter that justice may require.
32-17 Sec. 248.103. REPORT AND NOTICE OF VIOLATION AND PENALTY.
32-18 (a) If the department initially determines that a violation
32-19 occurred, the department shall issue a report stating:
32-20 (1) the facts on which the determination is based; and
32-21 (2) the department's recommendation on the imposition
32-22 of the penalty, including a recommendation on the amount of the
32-23 penalty.
32-24 (b) Within 14 days after the date the report is issued, the
32-25 commissioner of health shall give written notice of the report by
32-26 certified mail to the person.
32-27 (c) The notice must:
33-1 (1) include a brief summary of the alleged violation;
33-2 (2) state the amount of the recommended penalty; and
33-3 (3) inform the person of the person's right to a
33-4 hearing on the occurrence of the violation, the amount of the
33-5 penalty, or both.
33-6 Sec. 248.104. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
33-7 Within 20 days after the date the person receives the notice sent
33-8 under Section 248.103, the person in writing may:
33-9 (1) accept the determination and recommended penalty
33-10 of the department; or
33-11 (2) make a request for a hearing on the occurrence of
33-12 the violation, the amount of the penalty, or both.
33-13 (b) If the person accepts the determination and recommended
33-14 penalty of the department, the commissioner of health by order
33-15 shall approve the determination and impose the recommended penalty.
33-16 Sec. 248.105. HEARING. (a) If the person requests a
33-17 hearing or fails to respond in a timely manner to the notice sent
33-18 under Section 248.103, the commissioner of health shall refer the
33-19 matter to the State Office of Administrative Hearings, which shall
33-20 promptly set a hearing date and give written notice of the time and
33-21 place of the hearing to the person. An administrative law judge of
33-22 the State Office of Administrative Hearings shall conduct the
33-23 hearing.
33-24 (b) The administrative law judge shall make findings of fact
33-25 and conclusions of law and promptly issue to the commissioner of
33-26 health a proposal for a decision about the occurrence of the
33-27 violation and the amount of a proposed penalty.
34-1 Sec. 248.106. DECISION BY COMMISSIONER. (a) Based on the
34-2 findings of fact, conclusions of law, and proposal for a decision,
34-3 the commissioner of health by order may:
34-4 (1) find that a violation occurred and impose a
34-5 penalty; or
34-6 (2) find that a violation did not occur.
34-7 (b) The notice of the commissioner's order under Subsection
34-8 (a) that is sent to the person in accordance with Chapter 2001,
34-9 Government Code, must include a statement of the right of the
34-10 person to judicial review of the order.
34-11 Sec. 248.107. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
34-12 Within 30 days after the date the order of the commissioner of
34-13 health under Section 248.106 that imposes an administrative penalty
34-14 becomes final, the person shall:
34-15 (1) pay the penalty; or
34-16 (2) file a petition for judicial review of the
34-17 commissioner's order contesting the occurrence of the violation,
34-18 the amount of the penalty, or both.
34-19 Sec. 248.108. STAY OF ENFORCEMENT OF PENALTY. (a) Within
34-20 the 30-day period prescribed by Section 248.107, a person who files
34-21 a petition for judicial review may:
34-22 (1) stay enforcement of the penalty by:
34-23 (A) paying the penalty to the court for
34-24 placement in an escrow account; or
34-25 (B) giving the court a supersedeas bond approved
34-26 by the court that:
34-27 (i) is for the amount of the penalty; and
35-1 (ii) is effective until all judicial
35-2 review of the commissioner's order is final; or
35-3 (2) request the court to stay enforcement of the
35-4 penalty by:
35-5 (A) filing with the court a sworn affidavit of
35-6 the person stating that the person is financially unable to pay the
35-7 penalty and is financially unable to give the supersedeas bond; and
35-8 (B) sending a copy of the affidavit to the
35-9 commissioner of health by certified mail.
35-10 (b) If the commissioner of health receives a copy of an
35-11 affidavit under Subsection (a)(2), the commissioner may file with
35-12 the court, within five days after the date the copy is received, a
35-13 contest to the affidavit. The court shall hold a hearing on the
35-14 facts alleged in the affidavit as soon as practicable and shall
35-15 stay the enforcement of the penalty on finding that the alleged
35-16 facts are true. The person who files an affidavit has the burden
35-17 of proving that the person is financially unable to pay the penalty
35-18 or to give a supersedeas bond.
35-19 Sec. 248.109. COLLECTION OF PENALTY. (a) If the person
35-20 does not pay the penalty and the enforcement of the penalty is not
35-21 stayed, the penalty may be collected.
35-22 (b) The attorney general may sue to collect the penalty.
35-23 Sec. 248.110. DECISION BY COURT. (a) If the court sustains
35-24 the finding that a violation occurred, the court may uphold or
35-25 reduce the amount of the penalty and order the person to pay the
35-26 full or reduced amount of the penalty.
35-27 (b) If the court does not sustain the finding that a
36-1 violation occurred, the court shall order that a penalty is not
36-2 owed.
36-3 Sec. 248.111. REMITTANCE OF PENALTY AND INTEREST. (a) If
36-4 the person paid the penalty and if the amount of the penalty is
36-5 reduced or the penalty is not upheld by the court, the court shall
36-6 order, when the court's judgment becomes final, that the
36-7 appropriate amount plus accrued interest be remitted to the person
36-8 within 30 days after the date that the judgment of the court
36-9 becomes final.
36-10 (b) The interest accrues at the rate charged on loans to
36-11 depository institutions by the New York Federal Reserve Bank.
36-12 (c) The interest shall be paid for the period beginning on
36-13 the date the penalty is paid and ending on the date the penalty is
36-14 remitted.
36-15 Sec. 248.112. RELEASE OF BOND. (a) If the person gave a
36-16 supersedeas bond and the penalty is not upheld by the court, the
36-17 court shall order, when the court's judgment becomes final, the
36-18 release of the bond.
36-19 (b) If the person gave a supersedeas bond and the amount of
36-20 the penalty is reduced, the court shall order the release of the
36-21 bond after the person pays the reduced amount.
36-22 Sec. 248.113. ADMINISTRATIVE PROCEDURE. A proceeding to
36-23 impose the penalty is considered to be a contested case under
36-24 Chapter 2001, Government Code.
36-25 ARTICLE 5. ABUSABLE GLUES AND AEROSOL PAINTS; ADMINISTRATIVE
36-26 PENALTIES
36-27 SECTION 5.01. Chapter 485, Health and Safety Code, is
37-1 amended by adding Subchapter D to read as follows:
37-2 SUBCHAPTER D. ADMINISTRATIVE PENALTY
37-3 Sec. 485.101. IMPOSITION OF PENALTY. (a) The department
37-4 may impose an administrative penalty on a person who sells abusable
37-5 glue or aerosol paint at retail who violates this chapter or a rule
37-6 or order adopted under this chapter.
37-7 (b) A penalty collected under this subchapter shall be
37-8 deposited in the state treasury in the general revenue fund.
37-9 Sec. 485.102. AMOUNT OF PENALTY. (a) The amount of the
37-10 penalty may not exceed $1,000 for each violation and each day a
37-11 violation continues or occurs is a separate violation for purposes
37-12 of imposing a penalty.
37-13 (b) The amount shall be based on:
37-14 (1) the seriousness of the violation, including the
37-15 nature, circumstances, extent, and gravity of the violation;
37-16 (2) the threat to health or safety caused by the
37-17 violation;
37-18 (3) the history of previous violations;
37-19 (4) the amount necessary to deter a future violation;
37-20 (5) whether the violator demonstrated good faith,
37-21 including when applicable whether the violator made good faith
37-22 efforts to correct the violation; and
37-23 (6) any other matter that justice may require.
37-24 Sec. 485.103. REPORT AND NOTICE OF VIOLATION AND PENALTY.
37-25 (a) If the department initially determines that a violation
37-26 occurred, the department shall issue a report stating:
37-27 (1) the facts on which the determination is based; and
38-1 (2) the department's recommendation on the imposition
38-2 of the penalty, including a recommendation on the amount of the
38-3 penalty.
38-4 (b) Within 14 days after the date the report is issued, the
38-5 commissioner shall give written notice of the report by certified
38-6 mail to the person.
38-7 (c) The notice must:
38-8 (1) include a brief summary of the alleged violation;
38-9 (2) state the amount of the recommended penalty; and
38-10 (3) inform the person of the person's right to a
38-11 hearing on the occurrence of the violation, the amount of the
38-12 penalty, or both.
38-13 Sec. 485.104. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
38-14 Within 20 days after the date the person receives the notice sent
38-15 under Section 485.103, the person in writing may:
38-16 (1) accept the determination and recommended penalty
38-17 of the department; or
38-18 (2) make a request for a hearing on the occurrence of
38-19 the violation, the amount of the penalty, or both.
38-20 (b) If the person accepts the determination and recommended
38-21 penalty of the department, the commissioner by order shall approve
38-22 the determination and impose the recommended penalty.
38-23 Sec. 485.105. HEARING. (a) If the person requests a
38-24 hearing or fails to respond in a timely manner to the notice sent
38-25 under Section 485.103, the commissioner shall refer the matter to
38-26 the State Office of Administrative Hearings, which shall promptly
38-27 set a hearing date and give written notice of the time and place of
39-1 the hearing to the person. An administrative law judge of the State
39-2 Office of Administrative Hearings shall conduct the hearing.
39-3 (b) The administrative law judge shall make findings of fact
39-4 and conclusions of law and promptly issue to the commissioner a
39-5 proposal for a decision about the occurrence of the violation and
39-6 the amount of a proposed penalty.
39-7 Sec. 485.106. DECISION BY COMMISSIONER. (a) Based on the
39-8 findings of fact, conclusions of law, and proposal for a decision,
39-9 the commissioner by order may:
39-10 (1) find that a violation occurred and impose a
39-11 penalty; or
39-12 (2) find that a violation did not occur.
39-13 (b) The notice of the commissioner's order under Subsection
39-14 (a) that is sent to the person in accordance with Chapter 2001,
39-15 Government Code, must include a statement of the right of the
39-16 person to judicial review of the order.
39-17 Sec. 485.107. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
39-18 Within 30 days after the date the order of the commissioner under
39-19 Section 485.106 that imposes an administrative penalty becomes
39-20 final, the person shall:
39-21 (1) pay the penalty; or
39-22 (2) file a petition for judicial review of the
39-23 commissioner's order contesting the occurrence of the violation,
39-24 the amount of the penalty, or both.
39-25 Sec. 485.108. STAY OF ENFORCEMENT OF PENALTY. (a) Within
39-26 the 30-day period prescribed by Section 485.107, a person who files
39-27 a petition for judicial review may:
40-1 (1) stay enforcement of the penalty by:
40-2 (A) paying the penalty to the court for
40-3 placement in an escrow account; or
40-4 (B) giving the court a supersedeas bond approved
40-5 by the court that:
40-6 (i) is for the amount of the penalty; and
40-7 (ii) is effective until all judicial
40-8 review of the commissioner's order is final; or
40-9 (2) request the court to stay enforcement of the
40-10 penalty by:
40-11 (A) filing with the court a sworn affidavit of
40-12 the person stating that the person is financially unable to pay the
40-13 penalty and is financially unable to give the supersedeas bond; and
40-14 (B) sending a copy of the affidavit to the
40-15 commissioner by certified mail.
40-16 (b) If the commissioner receives a copy of an affidavit
40-17 under Subsection (a)(2), the commissioner may file with the court,
40-18 within five days after the date the copy is received, a contest to
40-19 the affidavit. The court shall hold a hearing on the facts alleged
40-20 in the affidavit as soon as practicable and shall stay the
40-21 enforcement of the penalty on finding that the alleged facts are
40-22 true. The person who files an affidavit has the burden of proving
40-23 that the person is financially unable to pay the penalty or to give
40-24 a supersedeas bond.
40-25 Sec. 485.109. COLLECTION OF PENALTY. (a) If the person
40-26 does not pay the penalty and the enforcement of the penalty is not
40-27 stayed, the penalty may be collected.
41-1 (b) The attorney general may sue to collect the penalty.
41-2 Sec. 485.110. DECISION BY COURT. (a) If the court sustains
41-3 the finding that a violation occurred, the court may uphold or
41-4 reduce the amount of the penalty and order the person to pay the
41-5 full or reduced amount of the penalty.
41-6 (b) If the court does not sustain the finding that a
41-7 violation occurred, the court shall order that a penalty is not
41-8 owed.
41-9 Sec. 485.111. REMITTANCE OF PENALTY AND INTEREST. (a) If
41-10 the person paid the penalty and if the amount of the penalty is
41-11 reduced or the penalty is not upheld by the court, the court shall
41-12 order, when the court's judgment becomes final, that the
41-13 appropriate amount plus accrued interest be remitted to the person
41-14 within 30 days after the date that the judgment of the court
41-15 becomes final.
41-16 (b) The interest accrues at the rate charged on loans to
41-17 depository institutions by the New York Federal Reserve Bank.
41-18 (c) The interest shall be paid for the period beginning on
41-19 the date the penalty is paid and ending on the date the penalty is
41-20 remitted.
41-21 Sec. 485.112. RELEASE OF BOND. (a) If the person gave a
41-22 supersedeas bond and the penalty is not upheld by the court, the
41-23 court shall order, when the court's judgment becomes final, the
41-24 release of the bond.
41-25 (b) If the person gave a supersedeas bond and the amount of
41-26 the penalty is reduced, the court shall order the release of the
41-27 bond after the person pays the reduced amount.
42-1 Sec. 485.113. ADMINISTRATIVE PROCEDURE. A proceeding to
42-2 impose the penalty is considered to be a contested case under
42-3 Chapter 2001, Government Code.
42-4 ARTICLE 6. HAZARDOUS SUBSTANCES; ADMINISTRATIVE PENALTY
42-5 SECTION 6.01. Chapter 501, Health and Safety Code, is
42-6 amended by adding Subchapter D to read as follows:
42-7 SUBCHAPTER D. ADMINISTRATIVE PENALTY
42-8 Sec. 501.101. IMPOSITION OF PENALTY. (a) The department
42-9 may impose an administrative penalty on a person:
42-10 (1) who manufactures or repacks a hazardous substance
42-11 that is distributed in this state or who distributes a hazardous
42-12 substance in this state; and
42-13 (2) who violates this chapter or a rule or order
42-14 adopted under this chapter.
42-15 (b) A penalty collected under this subchapter shall be
42-16 deposited in the state treasury in the general revenue fund.
42-17 Sec. 501.102. AMOUNT OF PENALTY. (a) The amount of the
42-18 penalty may not exceed $1,000 for each violation, and each day a
42-19 violation continues or occurs is a separate violation for purposes
42-20 of imposing a penalty.
42-21 (b) The amount shall be based on:
42-22 (1) the seriousness of the violation, including the
42-23 nature, circumstances, extent, and gravity of the violation;
42-24 (2) the threat to health or safety caused by the
42-25 violation;
42-26 (3) the history of previous violations;
42-27 (4) the amount necessary to deter a future violation;
43-1 (5) whether the violator demonstrated good faith,
43-2 including when applicable whether the violator made good faith
43-3 efforts to correct the violation; and
43-4 (6) any other matter that justice may require.
43-5 Sec. 501.103. REPORT AND NOTICE OF VIOLATION AND PENALTY.
43-6 (a) If the department initially determines that a violation
43-7 occurred, the department shall issue a report stating:
43-8 (1) the facts on which the determination is based; and
43-9 (2) the department's recommendation on the imposition
43-10 of the penalty, including a recommendation on the amount of the
43-11 penalty.
43-12 (b) Within 14 days after the date the report is issued, the
43-13 commissioner of health shall give written notice of the report by
43-14 certified mail to the person.
43-15 (c) The notice must:
43-16 (1) include a brief summary of the alleged violation;
43-17 (2) state the amount of the recommended penalty; and
43-18 (3) inform the person of the person's right to a
43-19 hearing on the occurrence of the violation, the amount of the
43-20 penalty, or both.
43-21 Sec. 501.104. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
43-22 Within 20 days after the date the person receives the notice sent
43-23 under Section 501.103, the person in writing may:
43-24 (1) accept the determination and recommended penalty
43-25 of the department; or
43-26 (2) make a request for a hearing on the occurrence of
43-27 the violation, the amount of the penalty, or both.
44-1 (b) If the person accepts the determination and recommended
44-2 penalty of the department, the commissioner of health by order
44-3 shall approve the determination and impose the recommended penalty.
44-4 Sec. 501.105. HEARING. (a) If the person requests a
44-5 hearing or fails to respond in a timely manner to the notice sent
44-6 under Section 501.103, the commissioner of health shall refer the
44-7 matter to the State Office of Administrative Hearings, which shall
44-8 promptly set a hearing date and give written notice of the time and
44-9 place of the hearing to the person. An administrative law judge of
44-10 the State Office of Administrative Hearings shall conduct the
44-11 hearing.
44-12 (b) The administrative law judge shall make findings of fact
44-13 and conclusions of law and promptly issue to the commissioner of
44-14 health a proposal for a decision about the occurrence of the
44-15 violation and the amount of a proposed penalty.
44-16 Sec. 501.106. DECISION BY COMMISSIONER. (a) Based on the
44-17 findings of fact, conclusions of law, and proposal for a decision,
44-18 the commissioner of health by order may:
44-19 (1) find that a violation occurred and impose a
44-20 penalty; or
44-21 (2) find that a violation did not occur.
44-22 (b) The notice of the commissioner's order under Subsection
44-23 (a) that is sent to the person in accordance with Chapter 2001,
44-24 Government Code, must include a statement of the right of the
44-25 person to judicial review of the order.
44-26 Sec. 501.107. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
44-27 Within 30 days after the date an order of the commissioner of
45-1 health under Section 501.106 that imposes an administrative penalty
45-2 becomes final, the person shall:
45-3 (1) pay the penalty; or
45-4 (2) file a petition for judicial review of the
45-5 commissioner's order contesting the occurrence of the violation,
45-6 the amount of the penalty, or both.
45-7 Sec. 501.108. STAY OF ENFORCEMENT OF PENALTY. (a) Within
45-8 the 30-day period prescribed by Section 501.107, a person who files
45-9 a petition for judicial review may:
45-10 (1) stay enforcement of the penalty by:
45-11 (A) paying the penalty to the court for
45-12 placement in an escrow account; or
45-13 (B) giving the court a supersedeas bond approved
45-14 by the court that:
45-15 (i) is for the amount of the penalty; and
45-16 (ii) is effective until all judicial
45-17 review of the commissioner's order is final; or
45-18 (2) request the court to stay enforcement of the
45-19 penalty by:
45-20 (A) filing with the court a sworn affidavit of
45-21 the person stating that the person is financially unable to pay the
45-22 penalty and is financially unable to give the supersedeas bond; and
45-23 (B) giving a copy of the affidavit to the
45-24 commissioner of health by certified mail.
45-25 (b) If the commissioner of health receives a copy of an
45-26 affidavit under Subsection (a)(2), the commissioner may file with
45-27 the court, within five days after the date the copy is received, a
46-1 contest to the affidavit. The court shall hold a hearing on the
46-2 facts alleged in the affidavit as soon as practicable and shall
46-3 stay the enforcement of the penalty on finding that the alleged
46-4 facts are true. The person who files an affidavit has the burden
46-5 of proving that the person is financially unable to pay the penalty
46-6 or to give a supersedeas bond.
46-7 Sec. 501.109. COLLECTION OF PENALTY. (a) If the person
46-8 does not pay the penalty and the enforcement of the penalty is not
46-9 stayed, the penalty may be collected.
46-10 (b) The attorney general may sue to collect the penalty.
46-11 Sec. 501.110. DECISION BY COURT. (a) If the court sustains
46-12 the finding that a violation occurred, the court may uphold or
46-13 reduce the amount of the penalty and order the person to pay the
46-14 full or reduced amount of the penalty.
46-15 (b) If the court does not sustain the finding that a
46-16 violation occurred, the court shall order that a penalty is not
46-17 owed.
46-18 Sec. 501.111. REMITTANCE OF PENALTY AND INTEREST. (a) If
46-19 the person paid the penalty and if the amount of the penalty is
46-20 reduced or the penalty is not upheld by the court, the court shall
46-21 order, when the court's judgment becomes final, that the
46-22 appropriate amount plus accrued interest be remitted to the person
46-23 within 30 days after the date that the judgment of the court
46-24 becomes final.
46-25 (b) The interest accrues at the rate charged on loans to
46-26 depository institutions by the New York Federal Reserve Bank.
46-27 (c) The interest shall be paid for the period beginning on
47-1 the date the penalty is paid and ending on the date the penalty is
47-2 remitted.
47-3 Sec. 501.112. RELEASE OF BOND. (a) If the person gave a
47-4 supersedeas bond and the penalty is not upheld by the court, the
47-5 court shall order, when the court's judgment becomes final, the
47-6 release of the bond.
47-7 (b) If the person gave a supersedeas bond and the amount of
47-8 the penalty is reduced, the court shall order the release of the
47-9 bond after the person pays the reduced amount.
47-10 Sec. 501.113. ADMINISTRATIVE PROCEDURE. A proceeding to
47-11 impose the penalty is considered to be a contested case under
47-12 Chapter 2001, Government Code.
47-13 ARTICLE 7. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO THE
47-14 RADIATION ADVISORY BOARD
47-15 SECTION 7.01. Section 401.015, Health and Safety Code, is
47-16 amended by adding Subsections (d), (e), and (f) to read as follows:
47-17 (d) In this subsection, "Texas trade association" means a
47-18 cooperative and voluntarily joined association of business or
47-19 professional competitors in this state designed to assist its
47-20 members and its industry or profession in dealing with mutual
47-21 business or professional problems and in promoting their common
47-22 interest. A person may not be a member of the advisory board if:
47-23 (1) the person is an officer, employee, or paid
47-24 consultant of a Texas trade association in the field of
47-25 radiography; or
47-26 (2) the person's spouse is an officer, manager, or
47-27 paid consultant of a Texas trade association in the field of
48-1 radiography.
48-2 (e) A person may not be a member of the advisory board or
48-3 act as the general counsel to the advisory board if the person is
48-4 required to register as a lobbyist under Chapter 305, Government
48-5 Code, because of the person's activities for compensation on behalf
48-6 of a profession related to the operation of the advisory board.
48-7 (f) Appointments to the advisory board shall be made without
48-8 regard to the race, color, disability, sex, religion, age, or
48-9 national origin of the appointees.
48-10 SECTION 7.02. Subchapter B, Chapter 401, Health and Safety
48-11 Code, is amended by adding Sections 401.0151 through 401.0153 to
48-12 read as follows:
48-13 Sec. 401.0151. TRAINING FOR ADVISORY BOARD MEMBERS. (a) A
48-14 person who is appointed to and qualifies for office as a member of
48-15 the advisory board may not vote, deliberate, or be counted as a
48-16 member in attendance at a meeting of the advisory board until the
48-17 person completes a training program that complies with this
48-18 section.
48-19 (b) The training program must provide the person with
48-20 information regarding:
48-21 (1) the legislation that created the advisory board;
48-22 (2) the role and functions of the advisory board;
48-23 (3) the rules of the advisory board and applicable
48-24 rules of the department with an emphasis on the rules that relate
48-25 to disciplinary and investigatory authority;
48-26 (4) the requirements of:
48-27 (A) the open meetings law, Chapter 551,
49-1 Government Code;
49-2 (B) the public information law, Chapter 552,
49-3 Government Code;
49-4 (C) the administrative procedure law, Chapter
49-5 2001, Government Code; and
49-6 (D) other laws relating to public officials,
49-7 including conflict-of-interest laws; and
49-8 (5) any applicable ethics policies adopted by the
49-9 advisory board or the Texas Ethics Commission.
49-10 (c) A person appointed to the advisory board is entitled to
49-11 reimbursement, as provided by the General Appropriations Act, for
49-12 the travel expenses incurred in attending the training program
49-13 regardless of whether the attendance at the program occurs before
49-14 or after the person qualifies for office.
49-15 Sec. 401.0152. INFORMATION ABOUT STANDARDS OF CONDUCT. The
49-16 commissioner or the commissioner's designee shall provide to
49-17 members of the advisory board, as often as necessary, information
49-18 regarding the requirements for office under this subchapter,
49-19 including information regarding a person's responsibilities under
49-20 applicable laws relating to standards of conduct for state
49-21 officers.
49-22 Sec. 401.0153. GROUNDS FOR REMOVAL. (a) It is a ground for
49-23 removal from the advisory board that a member:
49-24 (1) does not have at the time of taking office the
49-25 qualifications required by Section 401.015(a);
49-26 (2) does not maintain during service on the advisory
49-27 board the qualifications required by Section 401.015(a);
50-1 (3) is ineligible for membership under Section
50-2 401.015(c), (d), or (e);
50-3 (4) cannot, because of illness or disability,
50-4 discharge the member's duties for a substantial part of the
50-5 member's term; or
50-6 (5) is absent from more than half of the regularly
50-7 scheduled advisory board meetings that the member is eligible to
50-8 attend during a calendar year without an excuse approved by a
50-9 majority vote of the advisory board.
50-10 (b) The validity of an action of the advisory board is not
50-11 affected by the fact that it is taken when a ground for removal of
50-12 an advisory board member exists.
50-13 (c) If the commissioner has knowledge that a potential
50-14 ground for removal exists, the commissioner shall notify the
50-15 advisory board chairman of the potential ground. The advisory
50-16 board chairman shall then notify the governor and the attorney
50-17 general that a potential ground for removal exists. If the
50-18 potential ground for removal involves the advisory board chairman,
50-19 the commissioner shall notify the next highest ranking officer of
50-20 the advisory board, who shall then notify the governor and the
50-21 attorney general that a potential ground for removal exists.
50-22 SECTION 7.03. Section 401.016, Health and Safety Code, is
50-23 amended to read as follows:
50-24 Sec. 401.016. OFFICERS. (a) The governor shall designate a
50-25 member of the advisory board as the advisory board chairman to
50-26 serve in that capacity at the will of the governor.
50-27 (b) The advisory board shall elect from its members a
51-1 [chairman,] vice-chairman[,] and secretary.
51-2 SECTION 7.04. Subchapter B, Chapter 401, Health and Safety
51-3 Code, is amended by adding Section 401.0181 to read as follows:
51-4 Sec. 401.0181. PUBLIC TESTIMONY. The advisory board shall
51-5 develop and implement policies that provide the public with a
51-6 reasonable opportunity to appear before the advisory board and to
51-7 speak on any issue under the jurisdiction of the advisory board.
51-8 SECTION 7.05. The changes in law made by this Act in the
51-9 prohibitions applying to members of the radiation advisory board do
51-10 not affect the entitlement of a member serving on the board
51-11 immediately before September 1, 1999, to continue to serve and
51-12 function as a member of the board for the remainder of the member's
51-13 term. The changes in law apply only to a member appointed on or
51-14 after September 1, 1999. The changes in law made by this Act do
51-15 not prohibit a person who is a member of the board immediately
51-16 before September 1, 1999, from being reappointed to the board if
51-17 the person is eligible to serve as a member under Chapter 401,
51-18 Health and Safety Code, as amended by this Act.
51-19 ARTICLE 8. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO THE
51-20 COUNCIL ON ALZHEIMER'S DISEASE
51-21 SECTION 8.01. Section 101.002, Health and Safety Code, is
51-22 amended by amending Subsection (c) and adding Subsection (d) to
51-23 read as follows:
51-24 (c) The governor shall designate a member [members] of the
51-25 council who is not [shall annually elect a chairman from the
51-26 council, except that] an agency representative as the chairman of
51-27 the council to serve in that capacity at the will of the governor
52-1 [may not serve as the chairman].
52-2 (d) Appointments to the council shall be made without regard
52-3 to the race, color, disability, sex, religion, age, or national
52-4 origin of the appointees.
52-5 SECTION 8.02. Chapter 101, Health and Safety Code, is
52-6 amended by adding Sections 101.0021 through 101.0023 to read as
52-7 follows:
52-8 Sec. 101.0021. CONFLICT OF INTEREST. (a) In this section,
52-9 "Texas trade association" means a cooperative and voluntarily
52-10 joined association of business or professional competitors in this
52-11 state designed to assist its members and its industry or profession
52-12 in dealing with mutual business or professional problems and in
52-13 promoting their common interest.
52-14 (b) A person may not be a member of the council if:
52-15 (1) the person is an officer, employee, or paid
52-16 consultant of a Texas trade association in the field of medicine;
52-17 or
52-18 (2) the person's spouse is an officer, manager, or
52-19 paid consultant of a Texas trade association in the field of
52-20 medicine.
52-21 (c) A person may not be a member of the council if the
52-22 person is required to register as a lobbyist under Chapter 305,
52-23 Government Code, because of the person's activities for
52-24 compensation on behalf of a profession related to the operation of
52-25 the council.
52-26 Sec. 101.0022. GROUNDS FOR REMOVAL. (a) It is a ground for
52-27 removal from the council that a member:
53-1 (1) does not have at the time of taking office the
53-2 qualifications required by Section 101.002(a);
53-3 (2) does not maintain during service on the council
53-4 the qualifications required by Section 101.002(a);
53-5 (3) is ineligible for membership under Section
53-6 101.0021;
53-7 (4) cannot, because of illness or disability,
53-8 discharge the member's duties for a substantial part of the
53-9 member's term; or
53-10 (5) is absent from more than half of the regularly
53-11 scheduled council meetings that the member is eligible to attend
53-12 during a calendar year without an excuse approved by a majority
53-13 vote of the council.
53-14 (b) The validity of an action of the council is not affected
53-15 by the fact that it is taken when a ground for removal of a council
53-16 member exists.
53-17 (c) If the commissioner has knowledge that a potential
53-18 ground for removal exists, the commissioner shall notify the
53-19 chairman of the council of the potential ground. The chairman
53-20 shall then notify the governor and the attorney general that a
53-21 potential ground for removal exists. If the potential ground for
53-22 removal involves the chairman, the commissioner shall notify the
53-23 next highest ranking officer of the council, who shall then notify
53-24 the governor and the attorney general that a potential ground for
53-25 removal exists.
53-26 Sec. 101.0023. TRAINING. (a) A person who is appointed to
53-27 and qualifies for office as a member of the council may not vote,
54-1 deliberate, or be counted as a member in attendance at a meeting of
54-2 the council until the person completes a training program that
54-3 complies with this section.
54-4 (b) The training program must provide the person with
54-5 information regarding:
54-6 (1) the legislation that created the council;
54-7 (2) the programs operated by the council;
54-8 (3) the role and functions of the council;
54-9 (4) the rules of the council;
54-10 (5) the current budget for the council;
54-11 (6) the results of the most recent formal audit of the
54-12 council;
54-13 (7) the requirements of:
54-14 (A) the open meetings law, Chapter 551,
54-15 Government Code;
54-16 (B) the public information law, Chapter 552,
54-17 Government Code;
54-18 (C) the administrative procedure law, Chapter
54-19 2001, Government Code; and
54-20 (D) other laws relating to public officials,
54-21 including conflict-of-interest laws; and
54-22 (8) any applicable ethics policies adopted by the
54-23 council or the Texas Ethics Commission.
54-24 (c) A person appointed to the council is entitled to
54-25 reimbursement, as provided by the General Appropriations Act, for
54-26 the travel expenses incurred in attending the training program
54-27 regardless of whether the attendance at the program occurs before
55-1 or after the person qualifies for office.
55-2 SECTION 8.03. Chapter 101, Health and Safety Code, is
55-3 amended by adding Section 101.0065 to read as follows:
55-4 Sec. 101.0065. PUBLIC TESTIMONY. The council shall develop
55-5 and implement policies that provide the public with a reasonable
55-6 opportunity to appear before the council and to speak on any issue
55-7 under the jurisdiction of the council.
55-8 SECTION 8.04. Chapter 101, Health and Safety Code, is
55-9 amended by adding Section 101.0075 to read as follows:
55-10 Sec. 101.0075. DIVISION OF POLICY AND MANAGEMENT
55-11 RESPONSIBILITIES. The council shall develop and implement policies
55-12 that clearly separate the policymaking responsibilities of the
55-13 council and the management responsibilities of the commissioner and
55-14 the staff of the department.
55-15 SECTION 8.05. Chapter 101, Health and Safety Code, is
55-16 amended by adding Section 101.0081 to read as follows:
55-17 Sec. 101.0081. INFORMATION ABOUT STANDARDS OF CONDUCT. The
55-18 commissioner or the commissioner's designee shall provide to
55-19 members of the council, as often as necessary, information
55-20 regarding the requirements for office under this chapter, including
55-21 information regarding a person's responsibilities under applicable
55-22 laws relating to standards of conduct for state officers.
55-23 SECTION 8.06. The changes in law made by this Act in the
55-24 prohibitions applying to members of the Texas Council on
55-25 Alzheimer's Disease and Related Disorders do not affect the
55-26 entitlement of a member serving on the council immediately before
55-27 September 1, 1999, to continue to serve and function as a member of
56-1 the council for the remainder of the member's term. The changes in
56-2 law apply only to a member appointed on or after September 1, 1999.
56-3 The changes in law made by this Act do not prohibit a person who is
56-4 a member of the council immediately before September 1, 1999, from
56-5 being reappointed to the council if the person is eligible to serve
56-6 as a member under Chapter 101, Health and Safety Code, as amended
56-7 by this Act.
56-8 ARTICLE 9. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE
56-9 TO THE STATEWIDE HEALTH COORDINATING COUNCIL
56-10 SECTION 9.01. Section 104.011, Health and Safety Code, is
56-11 amended by adding Subsections (c) and (d) to read as follows:
56-12 (c) The governor shall designate a member of the council as
56-13 the presiding officer of the council to serve in that capacity at
56-14 the will of the governor.
56-15 (d) Appointments to the council shall be made without regard
56-16 to the race, color, disability, sex, religion, age, or national
56-17 origin of the appointees.
56-18 SECTION 9.02. Subchapter B, Chapter 104, Health and Safety
56-19 Code, is amended by adding Sections 104.0111 through 104.0113 to
56-20 read as follows:
56-21 Sec. 104.0111. CONFLICT OF INTEREST. (a) In this section,
56-22 "Texas trade association" means a cooperative and voluntarily
56-23 joined association of business or professional competitors in this
56-24 state designed to assist its members and its industry or profession
56-25 in dealing with mutual business or professional problems and in
56-26 promoting their common interest.
56-27 (b) A person may not be a member of the statewide health
57-1 coordinating council if:
57-2 (1) the person is an officer, employee, or paid
57-3 consultant of a Texas trade association in the field of medicine;
57-4 or
57-5 (2) the person's spouse is an officer, manager, or
57-6 paid consultant of a Texas trade association in the field of
57-7 medicine.
57-8 (c) A person may not be a member of the council if the
57-9 person is required to register as a lobbyist under Chapter 305,
57-10 Government Code, because of the person's activities for
57-11 compensation on behalf of a profession related to the operation of
57-12 the council.
57-13 Sec. 104.0112. GROUNDS FOR REMOVAL. (a) It is a ground for
57-14 removal from the statewide health coordinating council that a
57-15 member:
57-16 (1) does not have at the time of taking office the
57-17 qualifications required by Section 104.011(a);
57-18 (2) does not maintain during service on the council
57-19 the qualifications required by Section 104.011(a);
57-20 (3) is ineligible for membership under Section
57-21 104.0111;
57-22 (4) cannot, because of illness or disability,
57-23 discharge the member's duties for a substantial part of the
57-24 member's term; or
57-25 (5) is absent from more than half of the regularly
57-26 scheduled council meetings that the member is eligible to attend
57-27 during a calendar year without an excuse approved by a majority
58-1 vote of the council.
58-2 (b) The validity of an action of the council is not affected
58-3 by the fact that it is taken when a ground for removal of a council
58-4 member exists.
58-5 (c) If the commissioner has knowledge that a potential
58-6 ground for removal exists, the commissioner shall notify the
58-7 presiding officer of the council of the potential ground. The
58-8 presiding officer shall then notify the governor and the attorney
58-9 general that a potential ground for removal exists. If the
58-10 potential ground for removal involves the presiding officer, the
58-11 commissioner shall notify the next highest ranking officer of the
58-12 council, who shall then notify the governor and the attorney
58-13 general that a potential ground for removal exists.
58-14 Sec. 104.0113. TRAINING. (a) A person who is appointed to
58-15 and qualifies for office as a member of the statewide health
58-16 coordinating council may not vote, deliberate, or be counted as a
58-17 member in attendance at a meeting of the council until the person
58-18 completes a training program that complies with this section.
58-19 (b) The training program must provide the person with
58-20 information regarding:
58-21 (1) the legislation that created the council;
58-22 (2) the programs operated by the council;
58-23 (3) the role and functions of the council;
58-24 (4) the rules of the council;
58-25 (5) the current budget for the council;
58-26 (6) the results of the most recent formal audit of the
58-27 council;
59-1 (7) the requirements of:
59-2 (A) the open meetings law, Chapter 551,
59-3 Government Code;
59-4 (B) the public information law, Chapter 552,
59-5 Government Code;
59-6 (C) the administrative procedure law, Chapter
59-7 2001, Government Code; and
59-8 (D) other laws relating to public officials,
59-9 including conflict-of-interest laws; and
59-10 (8) any applicable ethics policies adopted by the
59-11 council or the Texas Ethics Commission.
59-12 (c) A person appointed to the council is entitled to
59-13 reimbursement, as provided by the General Appropriations Act, for
59-14 the travel expenses incurred in attending the training program
59-15 regardless of whether the attendance at the program occurs before
59-16 or after the person qualifies for office.
59-17 SECTION 9.03. Subchapter B, Chapter 104, Health and Safety
59-18 Code, is amended by adding Sections 104.0141 and 104.0142 to read
59-19 as follows:
59-20 Sec. 104.0141. DIVISION OF POLICY AND MANAGEMENT
59-21 RESPONSIBILITIES. The statewide health coordinating council shall
59-22 develop and implement policies that clearly separate the
59-23 policymaking responsibilities of the council and the management
59-24 responsibilities of the commissioner and the staff of the
59-25 department.
59-26 Sec. 104.0142. INFORMATION ABOUT STANDARDS OF CONDUCT. The
59-27 commissioner or the commissioner's designee shall provide to
60-1 members of the statewide health coordinating council, as often as
60-2 necessary, information regarding the requirements for office under
60-3 this chapter, including information regarding a person's
60-4 responsibilities under applicable laws relating to standards of
60-5 conduct for state officers.
60-6 SECTION 9.04. Subchapter B, Chapter 104, Health and Safety
60-7 Code, is amended by adding Section 104.016 to read as follows:
60-8 Sec. 104.016. PUBLIC TESTIMONY. The statewide health
60-9 coordinating council shall develop and implement policies that
60-10 provide the public with a reasonable opportunity to appear before
60-11 the council and to speak on any issue under the jurisdiction of the
60-12 council.
60-13 SECTION 9.05. The changes in law made by this Act in the
60-14 prohibitions applying to members of the statewide health
60-15 coordinating council do not affect the entitlement of a member
60-16 serving on the council immediately before September 1, 1999, to
60-17 continue to serve and function as a member of the council for the
60-18 remainder of the member's term. The changes in law apply only to a
60-19 member appointed on or after September 1, 1999. The changes in law
60-20 made by this Act do not prohibit a person who is a member of the
60-21 council immediately before September 1, 1999, from being
60-22 reappointed to the council if the person is eligible to serve as a
60-23 member under Chapter 104, Health and Safety Code, as amended by
60-24 this Act.
60-25 ARTICLE 10. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE
60-26 TO THE TEXAS DIABETES COUNCIL
60-27 SECTION 10.01. Section 103.002(d), Health and Safety Code,
61-1 is amended to read as follows:
61-2 (d) Appointments to the council shall be made without regard
61-3 to the race, color, disability, creed, sex, religion, age, or
61-4 national origin of the appointees.
61-5 SECTION 10.02. Section 103.006, Health and Safety Code, is
61-6 amended to read as follows:
61-7 Sec. 103.006. CHAIRMAN. The governor shall designate a
61-8 member of the council as the [Council members shall annually elect
61-9 one citizen member to serve as] chairman of the council to serve in
61-10 that capacity at the will of the governor.
61-11 SECTION 10.03. Chapter 103, Health and Safety Code, is
61-12 amended by adding Sections 103.0024 and 103.0025 to read as
61-13 follows:
61-14 Sec. 103.0024. TRAINING. (a) A person who is appointed to
61-15 and qualifies for office as a member of the council may not vote,
61-16 deliberate, or be counted as a member in attendance at a meeting of
61-17 the council until the person completes a training program that
61-18 complies with this section.
61-19 (b) The training program must provide the person with
61-20 information regarding:
61-21 (1) the legislation that created the council;
61-22 (2) the programs operated by the council;
61-23 (3) the role and functions of the council;
61-24 (4) the rules of the council;
61-25 (5) the current budget for the council;
61-26 (6) the results of the most recent formal audit of the
61-27 council;
62-1 (7) the requirements of:
62-2 (A) the open meetings law, Chapter 551,
62-3 Government Code;
62-4 (B) the public information law, Chapter 552,
62-5 Government Code;
62-6 (C) the administrative procedure law, Chapter
62-7 2001, Government Code; and
62-8 (D) other laws relating to public officials,
62-9 including conflict-of-interest laws; and
62-10 (8) any applicable ethics policies adopted by the
62-11 council or the Texas Ethics Commission.
62-12 (c) A person appointed to the council is entitled to
62-13 reimbursement, as provided by the General Appropriations Act, for
62-14 the travel expenses incurred in attending the training program
62-15 regardless of whether the attendance at the program occurs before
62-16 or after the person qualifies for office.
62-17 Sec. 103.0025. INFORMATION ABOUT STANDARDS OF CONDUCT. The
62-18 commissioner or the commissioner's designee shall provide to
62-19 members of the council, as often as necessary, information
62-20 regarding the requirements for office under this chapter, including
62-21 information regarding a person's responsibilities under applicable
62-22 laws relating to standards of conduct for state officers.
62-23 SECTION 10.04. Chapter 103, Health and Safety Code, is
62-24 amended by adding Section 103.0105 to read as follows:
62-25 Sec. 103.0105. DIVISION OF POLICY AND MANAGEMENT
62-26 RESPONSIBILITIES. The council shall develop and implement policies
62-27 that clearly separate the policymaking responsibilities of the
63-1 council and the management responsibilities of the commissioner and
63-2 the staff of the department.
63-3 SECTION 10.05. The changes in law made by this Act in the
63-4 prohibitions applying to members of the Texas Diabetes Council do
63-5 not affect the entitlement of a member serving on the council
63-6 immediately before September 1, 1999, to continue to serve and
63-7 function as a member of the council for the remainder of the
63-8 member's term. The changes in law apply only to a member appointed
63-9 on or after September 1, 1999.
63-10 ARTICLE 11. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE
63-11 TO THE ADVISORY BOARD OF ATHLETIC TRAINERS
63-12 SECTION 11.01. Section 2, Chapter 498, Acts of the 62nd
63-13 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
63-14 Civil Statutes), is amended by amending Subsections (a) and (b) and
63-15 adding Subsection (e) to read as follows:
63-16 (a) The Advisory Board of Athletic Trainers, composed of six
63-17 members, is created. The board is created as a part of the State
63-18 Department of Health and shall perform its duties as a board within
63-19 the State Department of Health. To qualify as a member, a person
63-20 must be a citizen of the United States and a resident of Texas for
63-21 five years immediately preceding appointment. Four members
63-22 [Members] must be licensed athletic trainers. Two members must be
63-23 representatives of the general public. A person may not be a
63-24 public member of the board if the person or the person's spouse:
63-25 (1) is registered, certified, or licensed by a
63-26 regulatory agency in the field of athletic training;
63-27 (2) is employed by or participates in the management
64-1 of a business entity or other organization regulated by or
64-2 receiving money from the board;
64-3 (3) owns or controls, directly or indirectly, more
64-4 than a 10 percent interest in a business entity or other
64-5 organization regulated by or receiving money from the board; or
64-6 (4) uses or receives a substantial amount of tangible
64-7 goods, services, or money from the board other than compensation or
64-8 reimbursement authorized by law for board membership, attendance,
64-9 or expenses.
64-10 (b) The members of the board shall be appointed by the
64-11 governor with the advice and consent of the Senate. Members
64-12 [Except for the initial appointees, members] hold office for terms
64-13 of six years. The terms of two members expire on January 31 of
64-14 each odd-numbered year [years].
64-15 (e) Appointments to the board shall be made without regard
64-16 to the race, color, disability, sex, religion, age, or national
64-17 origin of the appointees.
64-18 SECTION 11.02. Chapter 498, Acts of the 62nd Legislature,
64-19 Regular Session, 1971 (Article 4512d, Vernon's Texas Civil
64-20 Statutes), is amended by adding Sections 2B, 2C, 2D, 2E, and 2F to
64-21 read as follows:
64-22 Sec. 2B. CONFLICT OF INTEREST. (a) In this section, "Texas
64-23 trade association" means a cooperative and voluntarily joined
64-24 association of business or professional competitors in this state
64-25 designed to assist its members and its industry or profession in
64-26 dealing with mutual business or professional problems and in
64-27 promoting their common interest.
65-1 (b) A person may not be a member of the board if:
65-2 (1) the person is an officer, employee, or paid
65-3 consultant of a Texas trade association in the field of athletic
65-4 training; or
65-5 (2) the person's spouse is an officer, manager, or
65-6 paid consultant of a Texas trade association in the field of
65-7 athletic training.
65-8 (c) A person may not be a member of the board if the person
65-9 is required to register as a lobbyist under Chapter 305, Government
65-10 Code, because of the person's activities for compensation on behalf
65-11 of a profession related to the operation of the board.
65-12 Sec. 2C. GROUNDS FOR REMOVAL. (a) It is a ground for
65-13 removal from the board that a member:
65-14 (1) does not have at the time of taking office the
65-15 qualifications required by Subsection (a) of Section 2 of this Act;
65-16 (2) does not maintain during service on the board the
65-17 qualifications required by Subsection (a) of Section 2 of this
65-18 Act;
65-19 (3) is ineligible for membership under Section 2B of
65-20 this Act;
65-21 (4) cannot, because of illness or disability,
65-22 discharge the member's duties for a substantial part of the
65-23 member's term; or
65-24 (5) is absent from more than half of the regularly
65-25 scheduled board meetings that the member is eligible to attend
65-26 during a calendar year without an excuse approved by a majority
65-27 vote of the board.
66-1 (b) The validity of an action of the board is not affected
66-2 by the fact that it is taken when a ground for removal of a board
66-3 member exists.
66-4 (c) If the commissioner of health has knowledge that a
66-5 potential ground for removal exists, the commissioner shall notify
66-6 the chairman of the board of the potential ground. The chairman
66-7 shall then notify the governor and the attorney general that a
66-8 potential ground for removal exists. If the potential ground for
66-9 removal involves the chairman, the commissioner shall notify the
66-10 next highest ranking officer of the board, who shall then notify
66-11 the governor and the attorney general that a potential ground for
66-12 removal exists.
66-13 Sec. 2D. TRAINING. (a) A person who is appointed to and
66-14 qualifies for office as a member of the board may not vote,
66-15 deliberate, or be counted as a member in attendance at a meeting of
66-16 the board until the person completes a training program that
66-17 complies with this section.
66-18 (b) The training program must provide the person with
66-19 information regarding:
66-20 (1) the legislation that created the board;
66-21 (2) the programs operated by the board;
66-22 (3) the role and functions of the board;
66-23 (4) the rules of the board with an emphasis on the
66-24 rules that relate to disciplinary and investigatory authority;
66-25 (5) the current budget for the board;
66-26 (6) the results of the most recent formal audit of the
66-27 board;
67-1 (7) the requirements of:
67-2 (A) the open meetings law, Chapter 551,
67-3 Government Code;
67-4 (B) the public information law, Chapter 552,
67-5 Government Code;
67-6 (C) the administrative procedure law, Chapter
67-7 2001, Government Code; and
67-8 (D) other laws relating to public officials,
67-9 including conflict-of-interest laws; and
67-10 (8) any applicable ethics policies adopted by the
67-11 board or the Texas Ethics Commission.
67-12 (c) A person appointed to the board is entitled to
67-13 reimbursement, as provided by the General Appropriations Act, for
67-14 the travel expenses incurred in attending the training program
67-15 regardless of whether the attendance at the program occurs before
67-16 or after the person qualifies for office.
67-17 Sec. 2E. INFORMATION ABOUT STANDARDS OF CONDUCT. The
67-18 commissioner of health or the commissioner's designee shall provide
67-19 to members of the board, as often as necessary, information
67-20 regarding the requirements for office under this Act, including
67-21 information regarding a person's responsibilities under applicable
67-22 laws relating to standards of conduct for state officers.
67-23 Sec. 2F. DIVISION OF POLICY AND MANAGEMENT RESPONSIBILITIES.
67-24 The board shall develop and implement policies that clearly
67-25 separate the policymaking responsibilities of the board and the
67-26 management responsibilities of the commissioner of health and the
67-27 staff of the Texas Department of Health.
68-1 SECTION 11.03. Section 3, Chapter 498, Acts of the 62nd
68-2 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
68-3 Civil Statutes), is amended by amending Subsection (a) and adding
68-4 Subsection (d) to read as follows:
68-5 (a) The governor shall designate a member of the board as
68-6 the chairman of the board to serve in that capacity at the will of
68-7 the governor. The board shall elect from its members for a term of
68-8 one year[,] a [chairman,] vice chairman[,] and secretary-treasurer,
68-9 and may appoint such committees as it considers necessary to carry
68-10 out its duties.
68-11 (d) The board shall develop and implement policies that
68-12 provide the public with a reasonable opportunity to appear before
68-13 the board and to speak on any issue under the jurisdiction of the
68-14 board.
68-15 SECTION 11.04. Chapter 498, Acts of the 62nd Legislature,
68-16 Regular Session, 1971 (Article 4512d, Vernon's Texas Civil
68-17 Statutes), is amended by adding Section 4A to read as follows:
68-18 Sec. 4A. COMPLAINTS. (a) The board shall maintain a file
68-19 on each written complaint filed with the board. The file must
68-20 include:
68-21 (1) the name of the person who filed the complaint;
68-22 (2) the date the complaint is received by the board;
68-23 (3) the subject matter of the complaint;
68-24 (4) the name of each person contacted in relation to
68-25 the complaint;
68-26 (5) a summary of the results of the review or
68-27 investigation of the complaint; and
69-1 (6) an explanation of the reason the file was closed,
69-2 if the board closed the file without taking action other than to
69-3 investigate the complaint.
69-4 (b) The board shall provide to the person filing the
69-5 complaint and to each person who is a subject of the complaint a
69-6 copy of the board's policies and procedures relating to complaint
69-7 investigation and resolution.
69-8 (c) The board, at least quarterly until final disposition of
69-9 the complaint, shall notify the person filing the complaint and
69-10 each person who is a subject of the complaint of the status of the
69-11 investigation unless the notice would jeopardize an undercover
69-12 investigation.
69-13 SECTION 11.05. Section 5, Chapter 498, Acts of the 62nd
69-14 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
69-15 Civil Statutes), is amended by amending Subsection (c) and adding
69-16 Subsection (j) to read as follows:
69-17 (c) The board shall [establish guidelines, which may include
69-18 requirements for continuing education, for athletic trainers in the
69-19 state and] prepare and conduct an examination for applicants for a
69-20 license.
69-21 (j) The board shall recognize, prepare, or administer
69-22 continuing education programs for its license holders. A license
69-23 holder must participate in the programs to the extent required by
69-24 the board to keep the person's license.
69-25 SECTION 11.06. Chapter 498, Acts of the 62nd Legislature,
69-26 Regular Session, 1971 (Article 4512d, Vernon's Texas Civil
69-27 Statutes), is amended by adding Section 5A to read as follows:
70-1 Sec. 5A. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING.
70-2 (a) The board may not adopt rules restricting advertising or
70-3 competitive bidding by a license holder except to prohibit false,
70-4 misleading, or deceptive practices.
70-5 (b) In its rules to prohibit false, misleading, or deceptive
70-6 practices, the board may not include a rule that:
70-7 (1) restricts the use of any medium for advertising;
70-8 (2) restricts the use of a license holder's personal
70-9 appearance or voice in an advertisement;
70-10 (3) relates to the size or duration of an
70-11 advertisement by the license holder; or
70-12 (4) restricts the license holder's advertisement under
70-13 a trade name.
70-14 SECTION 11.07. Section 11, Chapter 498, Acts of the 62nd
70-15 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
70-16 Civil Statutes), is amended by amending Subsections (b)-(e) to read
70-17 as follows:
70-18 (b) A person who is otherwise eligible to renew a license
70-19 may renew an unexpired license by paying to the board before the
70-20 expiration date of the license the required renewal fee. A person
70-21 whose license has expired may not engage in activities that require
70-22 a license until the license has been renewed.
70-23 (c) If a person's license has been expired for not longer
70-24 than 90 days, the person may renew the license by paying to the
70-25 board a renewal fee that is 1-1/2 times the normally required
70-26 renewal fee [and a fee that is one-half of the examination fee for
70-27 the license].
71-1 (d) If a person's license has been expired for longer than
71-2 90 days but less than one year [two years], the person may renew
71-3 the license by paying to the board [all unpaid renewal fees and] a
71-4 renewal fee that is equal to two times the normally required
71-5 renewal [the examination] fee for the license.
71-6 (e) If a person's license has been expired for one year [two
71-7 years] or longer, the person may not renew the license. The person
71-8 may obtain a new license by submitting to reexamination and
71-9 complying with the requirements and procedures for obtaining an
71-10 original license. However, the board may renew without
71-11 reexamination an expired license of a person who was licensed in
71-12 Texas, moved to another state, and is currently licensed and has
71-13 been in practice in the other state for the two years preceding the
71-14 date of application. The person must pay to the board a fee that
71-15 is equal to two times the normally required renewal [the
71-16 examination] fee for the license.
71-17 SECTION 11.08. Section 12, Chapter 498, Acts of the 62nd
71-18 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
71-19 Civil Statutes), is amended to read as follows:
71-20 Sec. 12. GROUNDS FOR DENIAL, SUSPENSION, OR REVOCATION OF
71-21 LICENSE. (a) The board may refuse to issue a license to an
71-22 applicant and shall reprimand a licensee or [may] suspend, [or]
71-23 revoke, or refuse to renew the license of any licensee if he has:
71-24 (1) been convicted of a felony or misdemeanor
71-25 involving moral turpitude, the record of conviction being
71-26 conclusive evidence of conviction; [or]
71-27 (2) secured [secure] the license by fraud or deceit;
72-1 or
72-2 (3) violated or conspired to violate the provisions of
72-3 this Act or rules and regulations issued pursuant to this Act.
72-4 (b) The board may place on probation a person whose license
72-5 is suspended. If a suspension is probated, the board may require
72-6 the person:
72-7 (1) to report regularly to the board on matters that
72-8 are the basis of the probation;
72-9 (2) to limit practice to the areas prescribed by the
72-10 board; or
72-11 (3) to continue or review professional education until
72-12 the person attains a degree of skill satisfactory to the board in
72-13 those areas that are the basis of the probation.
72-14 SECTION 11.09. Chapter 498, Acts of the 62nd Legislature,
72-15 Regular Session, 1971 (Article 4512d, Vernon's Texas Civil
72-16 Statutes), is amended by adding Sections 15A and 15B to read as
72-17 follows:
72-18 Sec. 15A. IMPOSITION OF ADMINISTRATIVE PENALTY. (a) The
72-19 board may impose an administrative penalty on a person licensed
72-20 under this Act who violates this Act or a rule or order adopted
72-21 under this Act. A penalty collected under this section or Section
72-22 15B of this Act shall be deposited in the state treasury in the
72-23 general revenue fund.
72-24 (b) A proceeding to impose the penalty is considered to be a
72-25 contested case under Chapter 2001, Government Code.
72-26 (c) The amount of the penalty may not exceed $500 for each
72-27 violation, and each day a violation continues or occurs is a
73-1 separate violation for purposes of imposing a penalty.
73-2 (d) The amount shall be based on:
73-3 (1) the seriousness of the violation, including the
73-4 nature, circumstances, extent, and gravity of the violation;
73-5 (2) the threat to health or safety caused by the
73-6 violation;
73-7 (3) the history of previous violations;
73-8 (4) the amount necessary to deter a future violation;
73-9 (5) whether the violator demonstrated good faith,
73-10 including when applicable whether the violator made good faith
73-11 efforts to correct the violation; and
73-12 (6) any other matter that justice may require.
73-13 (e) If the executive secretary determines that a violation
73-14 occurred, the executive secretary may issue to the board a report
73-15 stating:
73-16 (1) the facts on which the determination is based; and
73-17 (2) the executive secretary's recommendation on the
73-18 imposition of the penalty, including a recommendation on the amount
73-19 of the penalty.
73-20 (f) Within 14 days after the date the report is issued, the
73-21 executive secretary shall give written notice of the report by
73-22 certified mail to the person.
73-23 (g) The notice under Subsection (f) of this section must:
73-24 (1) include a brief summary of the alleged violation;
73-25 (2) state the amount of the recommended penalty; and
73-26 (3) inform the person of the person's right to a
73-27 hearing on the occurrence of the violation, the amount of the
74-1 penalty, or both.
74-2 (h) Within 20 days after the date the person receives the
74-3 notice under Subsection (f) of this section, the person in writing
74-4 may:
74-5 (1) accept the determination and recommended penalty
74-6 of the executive secretary; or
74-7 (2) make a request for a hearing on the occurrence of
74-8 the violation, the amount of the penalty, or both.
74-9 (i) If the person accepts the determination and recommended
74-10 penalty of the executive secretary, the board by order shall
74-11 approve the determination and impose the recommended penalty.
74-12 (j) If the person requests a hearing or fails to respond in
74-13 a timely manner to the notice, the board shall refer the matter to
74-14 the State Office of Administrative Hearings, which shall promptly
74-15 set a hearing date and give written notice of the time and place of
74-16 the hearing to the person. An administrative law judge of the State
74-17 Office of Administrative Hearings shall conduct the hearing.
74-18 (k) The administrative law judge shall make findings of fact
74-19 and conclusions of law and promptly issue to the board a proposal
74-20 for a decision about the occurrence of the violation and the amount
74-21 of a proposed penalty.
74-22 (l) Based on the findings of fact, conclusions of law, and
74-23 proposal for a decision, the board by order may:
74-24 (1) find that a violation occurred and impose a
74-25 penalty; or
74-26 (2) find that a violation did not occur.
74-27 (m) The notice of the board's order under Subsection (l) of
75-1 this section that is sent to the person in accordance with Chapter
75-2 2001, Government Code, must include a statement of the right of the
75-3 person to judicial review of the order.
75-4 Sec. 15B. PAYMENT AND COLLECTION OF ADMINISTRATIVE PENALTY;
75-5 JUDICIAL REVIEW. (a) Within 30 days after the date an order of
75-6 the board under Subsection (l) of Section 15A of this Act that
75-7 imposes an administrative penalty becomes final, the person shall:
75-8 (1) pay the penalty; or
75-9 (2) file a petition for judicial review of the board's
75-10 order contesting the occurrence of the violation, the amount of the
75-11 penalty, or both.
75-12 (b) Within the 30-day period prescribed by Subsection (a) of
75-13 this section, a person who files a petition for judicial review
75-14 may:
75-15 (1) stay enforcement of the penalty by:
75-16 (A) paying the penalty to the court for
75-17 placement in an escrow account; or
75-18 (B) giving the court a supersedeas bond approved
75-19 by the court that:
75-20 (i) is for the amount of the penalty; and
75-21 (ii) is effective until all judicial
75-22 review of the board's order is final; or
75-23 (2) request the court to stay enforcement of the
75-24 penalty by:
75-25 (A) filing with the court a sworn affidavit of
75-26 the person stating that the person is financially unable to pay the
75-27 penalty and is financially unable to give the supersedeas bond; and
76-1 (B) sending a copy of the affidavit to the board
76-2 by certified mail.
76-3 (c) If the board receives a copy of an affidavit under
76-4 Subsection (b)(2) of this section, the board may file with the
76-5 court, within five days after the date the copy is received, a
76-6 contest to the affidavit. The court shall hold a hearing on the
76-7 facts alleged in the affidavit as soon as practicable and shall
76-8 stay the enforcement of the penalty on finding that the alleged
76-9 facts are true. The person who files an affidavit has the burden
76-10 of proving that the person is financially unable to pay the penalty
76-11 or to give a supersedeas bond.
76-12 (d) If the person does not pay the penalty and the
76-13 enforcement of the penalty is not stayed, the penalty may be
76-14 collected. The attorney general may sue to collect the penalty.
76-15 (e) If the court sustains the finding that a violation
76-16 occurred, the court may uphold or reduce the amount of the penalty
76-17 and order the person to pay the full or reduced amount of the
76-18 penalty.
76-19 (f) If the court does not sustain the finding that a
76-20 violation occurred, the court shall order that a penalty is not
76-21 owed.
76-22 (g) If the person paid the penalty and if the amount of the
76-23 penalty is reduced or the penalty is not upheld by the court, the
76-24 court shall order, when the court's judgment becomes final, that
76-25 the appropriate amount plus accrued interest be remitted to the
76-26 person within 30 days after the date that the judgment of the court
76-27 becomes final. The interest accrues at the rate charged on loans
77-1 to depository institutions by the New York Federal Reserve Bank.
77-2 The interest shall be paid for the period beginning on the date the
77-3 penalty is paid and ending on the date the penalty is remitted.
77-4 (h) If the person gave a supersedeas bond and the penalty is
77-5 not upheld by the court, the court shall order, when the court's
77-6 judgment becomes final, the release of the bond. If the person gave
77-7 a supersedeas bond and the amount of the penalty is reduced, the
77-8 court shall order the release of the bond after the person pays the
77-9 reduced amount.
77-10 SECTION 11.10. (a) The changes in law made by this Act in
77-11 the qualifications and the prohibitions applying to members of the
77-12 Advisory Board of Athletic Trainers do not affect the entitlement
77-13 of a member serving on the board immediately before September 1,
77-14 1999, to continue to serve and function as a member of the board
77-15 for the remainder of the member's term. The changes in law apply
77-16 only to a member appointed on or after September 1, 1999. The
77-17 changes in law made by this Act do not prohibit a person who is a
77-18 member of the board immediately before September 1, 1999, from
77-19 being reappointed to the board if the person has the qualifications
77-20 required for a member under Chapter 498, Acts of the 62nd
77-21 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
77-22 Civil Statutes), as amended by this Act.
77-23 (b) On the expiration of the terms of the members of the
77-24 Advisory Board of Athletic Trainers scheduled to expire January 31,
77-25 2001, the governor shall appoint one athletic trainer member and
77-26 one public member to the board for terms expiring January 31, 2007,
77-27 in accordance with Section 2, Chapter 498, Acts of the 62nd
78-1 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
78-2 Civil Statutes), as amended by this Act. On the expiration of the
78-3 terms of the members of the board scheduled to expire January 31,
78-4 2003, the governor shall appoint one athletic trainer member and
78-5 one public member to the board for terms expiring January 31, 2009,
78-6 in accordance with Section 2, Chapter 498, Acts of the 62nd
78-7 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
78-8 Civil Statutes), as amended by this Act. If a vacancy occurs in a
78-9 position scheduled to expire January 31, 2001, the governor shall
78-10 appoint a public member to serve the remainder of the term if an
78-11 athletic trainer member remains in the other position scheduled to
78-12 expire on that date. If a vacancy occurs in a position scheduled
78-13 to expire January 31, 2003, the governor shall appoint a public
78-14 member to serve the remainder of the term if an athletic trainer
78-15 member remains in the other position scheduled to expire on that
78-16 date.
78-17 SECTION 11.11. The change in law made by this Act to
78-18 Subsections (d) and (e), Section 11, Chapter 498, Acts of the 62nd
78-19 Legislature, Regular Session, 1971 (Article 4512d, Vernon's Texas
78-20 Civil Statutes), applies only to the renewal of an expired license
78-21 on or after September 1, 2000. An expired license may be renewed
78-22 before that date in accordance with Subsections (d) and (e) of
78-23 Section 11 as they existed immediately before the effective date of
78-24 this Act, and the prior law is continued in effect for this limited
78-25 purpose.
78-26 ARTICLE 12. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO THE
78-27 REGULATION OF RESPIRATORY CARE PRACTITIONERS
79-1 SECTION 12.01. Chapter 829, Acts of the 69th Legislature,
79-2 Regular Session, 1985 (Article 4512l, Vernon's Texas Civil
79-3 Statutes), is amended by adding Sections 3A and 3B to read as
79-4 follows:
79-5 Sec. 3A. NOTIFICATION OF EXAMINATION RESULTS. (a) Not
79-6 later than the 30th day after the date a person takes a
79-7 certification examination under this Act, the department shall
79-8 notify the person of the results of the examination.
79-9 (b) If the examination is graded or reviewed by a testing
79-10 service:
79-11 (1) the department shall notify the person of the
79-12 results of the examination not later than the 14th day after the
79-13 date the department receives the results from the testing service;
79-14 and
79-15 (2) if notice of the examination results will be
79-16 delayed for longer than 90 days after the examination date, the
79-17 department shall notify the person of the reason for the delay
79-18 before the 90th day.
79-19 (c) The department may require a testing service to notify a
79-20 person of the results of the person's examination.
79-21 (d) If requested in writing by a person who fails a
79-22 certification examination administered under this Act, the
79-23 department shall furnish the person with an analysis of the
79-24 person's performance on the examination.
79-25 Sec. 3B. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING.
79-26 (a) The board of health may not adopt rules restricting
79-27 advertising or competitive bidding by a temporary permit or
80-1 certificate holder except to prohibit false, misleading, or
80-2 deceptive practices.
80-3 (b) In its rules to prohibit false, misleading, or deceptive
80-4 practices, the board of health may not include a rule that:
80-5 (1) restricts the use of any medium for advertising;
80-6 (2) restricts the use of a temporary permit or
80-7 certificate holder's personal appearance or voice in an
80-8 advertisement;
80-9 (3) relates to the size or duration of an
80-10 advertisement by the temporary permit or certificate holder; or
80-11 (4) restricts the temporary permit or certificate
80-12 holder's advertisement under a trade name.
80-13 SECTION 12.02. Section 7, Chapter 829, Acts of the 69th
80-14 Legislature, Regular Session, 1985 (Article 4512l, Vernon's Texas
80-15 Civil Statutes), is amended to read as follows:
80-16 Sec. 7. RENEWAL OF CERTIFICATE. (a) Except as otherwise
80-17 provided by this section, a certificate shall be renewed annually
80-18 or biennially as determined by the board of health. The department
80-19 shall mail a notice of renewal not later than the 30th day before
80-20 the expiration of the certificate to each person who holds a valid
80-21 certificate at the person's last known address. The certificate
80-22 holder shall complete the notice of renewal and shall return it to
80-23 the department with the renewal fee on or before the date of
80-24 expiration. A person whose temporary permit or certificate has
80-25 expired may not engage in activities that require a temporary
80-26 permit or certificate until the temporary permit or certificate has
80-27 been renewed.
81-1 (b) On receipt of the completed notice of renewal and
81-2 payment of the renewal fee, the department shall issue to the
81-3 certificate holder a certificate for the current renewal period.
81-4 The renewal is valid for the period stated on the renewal
81-5 certificate. The board of health shall establish uniform
81-6 continuing education requirements for the renewal of the
81-7 certificate of not less than six nor more than 12 continuing
81-8 education hours per renewal period. The board of health may adopt
81-9 rules relating to the attainment of the continuing education
81-10 requirements in hardship situations.
81-11 (c) A person whose certificate has been expired for 90 days
81-12 or less may renew the certificate by paying to the department a
81-13 renewal fee that is equal to 1-1/2 times the normally required
81-14 renewal fee.
81-15 (d) A person whose certificate has been expired for more
81-16 than 90 days but less than one year may renew the certificate by
81-17 paying to the department a renewal fee that is equal to two times
81-18 the normally required renewal fee.
81-19 (e) A person whose certificate has been expired for one year
81-20 or more may not renew the certificate. The person may obtain a new
81-21 certificate by complying with the requirements and procedures,
81-22 including the examination requirements, for obtaining an original
81-23 certificate.
81-24 (f) A person who was certified in this state, moved to
81-25 another state, and is currently certified and has been in practice
81-26 in the other state for the two years preceding the date of
81-27 application may obtain a new certificate without reexamination.
82-1 The person must pay to the department a fee that is equal to two
82-2 times the normally required renewal fee for the certificate.
82-3 (g) [A certificate holder who fails to renew the certificate
82-4 on or before the expiration date may reinstate the certificate
82-5 within the time set by the board of health on payment of the
82-6 renewal fee and a reinstatement fee.]
82-7 [(d)] A respiratory care practitioner who does not engage in
82-8 the practice of respiratory care during a subsequent renewal period
82-9 and who notifies the department of the inactivity is not required
82-10 to pay the renewal fee as long as that practitioner remains
82-11 inactive. If the practitioner desires to resume the practice of
82-12 respiratory care, the practitioner must notify the department and
82-13 must satisfy the requirements of the board of health in addition to
82-14 remitting the renewal fee for the current renewal period and the
82-15 reinstatement fee.
82-16 SECTION 12.03. Chapter 829, Acts of the 69th Legislature,
82-17 Regular Session, 1985 (Article 4512l, Vernon's Texas Civil
82-18 Statutes), is amended by adding Section 7A to read as follows:
82-19 Sec. 7A. STAGGERED RENEWAL DATES. The board of health by
82-20 rule may adopt a system under which certificates expire on various
82-21 dates during the year. For the year in which the certificate
82-22 expiration date is changed, the department shall prorate
82-23 certificate fees on a monthly basis so that each certificate holder
82-24 pays only that portion of the certificate fee that is allocable to
82-25 the number of months during which the certificate is valid. On
82-26 renewal of the certificate on the new expiration date, the total
82-27 certificate renewal fee is payable.
83-1 ARTICLE 13. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO THE
83-2 REGISTRATION OF DISPENSING OPTICIANS
83-3 SECTION 13.01. Subsection (b), Section 5, Opticians'
83-4 Registry Act (Article 4551-1, Vernon's Texas Civil Statutes), is
83-5 amended to read as follows:
83-6 (b) The board may not adopt substantive rules relating to
83-7 this Act other than substantive rules described by Subsection (a)
83-8 of this section, Subsection (b) of Section 9 of this Act, and
83-9 Section 5A of this Act.
83-10 SECTION 13.02. The Opticians' Registry Act (Article 4551-1,
83-11 Vernon's Texas Civil Statutes) is amended by adding Section 5A to
83-12 read as follows:
83-13 Sec. 5A. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING.
83-14 (a) The board may not adopt rules restricting advertising or
83-15 competitive bidding by a registrant except to prohibit false,
83-16 misleading, or deceptive practices.
83-17 (b) In its rules to prohibit false, misleading, or deceptive
83-18 practices, the board may not include a rule that:
83-19 (1) restricts the use of any medium for advertising;
83-20 (2) restricts the use of a registrant's personal
83-21 appearance or voice in an advertisement;
83-22 (3) relates to the size or duration of an
83-23 advertisement by the registrant; or
83-24 (4) restricts the registrant's advertisement under a
83-25 trade name.
83-26 SECTION 13.03. Section 7, Opticians' Registry Act (Article
83-27 4551-1, Vernon's Texas Civil Statutes), is amended by adding
84-1 Subsections (c)-(f) to read as follows:
84-2 (c) Not later than the 30th day after the date a person
84-3 takes a qualifying examination under this Act, the department
84-4 shall notify the person of the results of the examination.
84-5 (d) If the examination is graded or reviewed by a testing
84-6 service:
84-7 (1) the department shall notify the person of the
84-8 results of the examination not later than the 14th day after the
84-9 date the department receives the results from the testing service;
84-10 and
84-11 (2) if notice of the examination results will be
84-12 delayed for longer than 90 days after the examination date, the
84-13 department shall notify the person of the reason for the delay
84-14 before the 90th day.
84-15 (e) The department may require a testing service to notify a
84-16 person of the results of the person's examination.
84-17 (f) If requested in writing by a person who fails a
84-18 qualifying examination administered under this Act, the department
84-19 shall furnish the person with an analysis of the person's
84-20 performance on the examination.
84-21 SECTION 13.04. Section 9, Opticians' Registry Act (Article
84-22 4551-1, Vernon's Texas Civil Statutes), is amended to read as
84-23 follows:
84-24 Sec. 9. RENEWAL OF REGISTRATION. (a) A certificate of
84-25 registration issued under this Act is valid for one year from the
84-26 date of issuance. To renew the registration, the registrant must
84-27 submit an application for renewal in the manner prescribed by the
85-1 board.
85-2 (b) The application must be accompanied by [a renewal fee
85-3 and] evidence that the applicant has successfully completed the
85-4 continuing education courses required by board rule. The board
85-5 shall recognize, prepare, or administer continuing education
85-6 programs for its registrants. A registrant must participate in the
85-7 programs to the extent required by the board to keep the person's
85-8 certificate of registration. The board may not require more than
85-9 10 classroom hours of continuing education courses per year.
85-10 (c) [(b)] The department shall adopt a system under which
85-11 registrations expire and are renewed on various dates of the year.
85-12 (d) A person who is otherwise eligible to renew a
85-13 certificate of registration may renew an unexpired certificate by
85-14 paying the required renewal fee to the department before the
85-15 expiration date of the certificate. A person whose certificate of
85-16 registration has expired may not make a representation for which a
85-17 certificate of registration is required under Section 4 of this Act
85-18 until the certificate has been renewed.
85-19 (e) A person whose certificate of registration has been
85-20 expired for 90 days or less may renew the certificate by paying to
85-21 the department a renewal fee that is equal to 1-1/2 times the
85-22 normally required renewal fee.
85-23 (f) A person whose certificate of registration has been
85-24 expired for more than 90 days but less than one year may renew the
85-25 certificate by paying to the department a renewal fee that is equal
85-26 to two times the normally required renewal fee.
85-27 (g) A person whose certificate of registration has been
86-1 expired for one year or more may not renew the certificate. The
86-2 person may obtain a new certificate of registration by complying
86-3 with the requirements and procedures, including the examination
86-4 requirements, for an original certificate.
86-5 (h) A person who was registered in this state, moved to
86-6 another state, and is currently licensed or registered and has been
86-7 in practice in the other state for the two years preceding the date
86-8 of application may obtain a new certificate of registration without
86-9 reexamination. The person must pay to the department a fee that is
86-10 equal to two times the normally required renewal fee for the
86-11 certificate.
86-12 (i) Not later than the 30th day before the date a person's
86-13 certificate of registration is scheduled to expire, the department
86-14 shall send written notice of the impending expiration to the person
86-15 at the person's last known address according to the records of the
86-16 department.
86-17 [(c) A person registered under this Act who does not renew
86-18 the registration by the expiration date may renew the registration
86-19 not later than the 180th day after the expiration date by paying a
86-20 late registration fee as prescribed by the board.]
86-21 [(d) The registration of a person who fails to meet the
86-22 renewal requirements under this section is void until the person
86-23 submits a new application, pays the appropriate fees, and meets the
86-24 current requirements for registration.]
86-25 SECTION 13.05. Section 12, Opticians' Registry Act (Article
86-26 4551-1, Vernon's Texas Civil Statutes), is amended to read as
86-27 follows:
87-1 Sec. 12. DENIAL, SUSPENSION, REVOCATION, AND PROBATION. (a)
87-2 The department shall [may] refuse to issue a certificate of
87-3 registration to an applicant, suspend or revoke a certificate of
87-4 registration, or reprimand [place on probation] an individual who
87-5 is registered under this Act if the individual:
87-6 (1) obtains a certificate by means of fraud,
87-7 misrepresentation, or concealment of material facts;
87-8 (2) sells, barters, or offers to sell or barter a
87-9 certificate of registration;
87-10 (3) violates a lawful rule adopted by the board;
87-11 (4) violates Section 4 of this Act; or
87-12 (5) practices medicine or optometry without a license.
87-13 (b) The board may place on probation a person whose
87-14 registration is suspended. If the suspension is probated, the
87-15 board may require the person:
87-16 (1) to report regularly to the department on matters
87-17 that are the basis of the probation;
87-18 (2) to limit practice to the areas prescribed by the
87-19 board; or
87-20 (3) to continue or review professional education until
87-21 the person attains a degree of skill satisfactory to the board in
87-22 those areas that are the basis of the probation.
87-23 (c) A person whose application of registration is denied,
87-24 whose registration is suspended[,] or revoked, or who is
87-25 reprimanded is entitled to a hearing before the department if the
87-26 person submits a written request for a hearing to the department.
87-27 A hearing is governed by department rules for a contested hearing
88-1 and by Chapter 2001, Government Code [the Administrative Procedure
88-2 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
88-3 Statutes)].
88-4 ARTICLE 14. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO THE
88-5 REGULATION OF MEDICAL RADIOLOGICAL TECHNOLOGISTS
88-6 SECTION 14.01. Section 2.05(d), Medical Radiologic
88-7 Technologist Certification Act (Article 4512m, Vernon's Texas Civil
88-8 Statutes), is amended to read as follows:
88-9 (d) The Texas Board of Health:
88-10 (1) may establish guidelines;
88-11 (2) shall prepare, recognize, or administer [, which
88-12 may include requirements for] continuing education programs for
88-13 medical radiologic technologists in which a medical radiologic
88-14 technologist must participate, to the extent required by the board,
88-15 to keep the person's certificate;[,] and
88-16 (3) [the Texas Board of Health] may prepare and
88-17 conduct an examination for applicants for a certificate.
88-18 SECTION 14.02. The Medical Radiologic Technologist
88-19 Certification Act (Article 4512m, Vernon's Texas Civil Statutes) is
88-20 amended by adding Section 2.055 to read as follows:
88-21 Sec. 2.055. RULES REGARDING ADVERTISING OR COMPETITIVE
88-22 BIDDING. (a) The Texas Board of Health may not adopt rules
88-23 restricting advertising or competitive bidding by a medical
88-24 radiologic technologist except to prohibit false, misleading, or
88-25 deceptive practices.
88-26 (b) In its rules to prohibit false, misleading, or deceptive
88-27 practices, the board may not include a rule that:
89-1 (1) restricts the use of any medium for advertising;
89-2 (2) restricts the use of a medical radiologic
89-3 technologist's personal appearance or voice in an advertisement;
89-4 (3) relates to the size or duration of an
89-5 advertisement by the medical radiologic technologist; or
89-6 (4) restricts the medical radiologic technologist's
89-7 advertisement under a trade name.
89-8 SECTION 14.03. The Medical Radiologic Technologist
89-9 Certification Act (Article 4512m, Vernon's Texas Civil Statutes) is
89-10 amended by adding Section 2.075 to read as follows:
89-11 Sec. 2.075. PROVISIONAL CERTIFICATES. (a) The Texas Board
89-12 of Health may issue a provisional certificate to an applicant
89-13 currently licensed or certified in another jurisdiction who seeks
89-14 certification in this state and who:
89-15 (1) has been licensed or certified in good standing as
89-16 a medical radiologic technologist for at least two years in another
89-17 jurisdiction, including a foreign country, that has licensing or
89-18 certification requirements substantially equivalent to the
89-19 requirements of this Act;
89-20 (2) has passed a national or other examination
89-21 recognized by the board relating to the practice of radiologic
89-22 technology; and
89-23 (3) is sponsored by a medical radiologic technologist
89-24 certified by the board under this Act with whom the provisional
89-25 certificate holder will practice during the time the person holds a
89-26 provisional certificate.
89-27 (b) The board may waive the requirement of Subsection (a)(3)
90-1 for an applicant if the board determines that compliance with that
90-2 subsection would be a hardship to the applicant.
90-3 (c) A provisional certificate is valid until the date the
90-4 board approves or denies the provisional certificate holder's
90-5 application for a certificate. The board shall issue a certificate
90-6 under this Act to the provisional certificate holder if:
90-7 (1) the provisional certificate holder is eligible to
90-8 be certified under Section 2.05(c) of this Act; or
90-9 (2) the provisional certificate holder passes the part
90-10 of the examination under Section 2.05(d) of this Act that relates
90-11 to the applicant's knowledge and understanding of the laws and
90-12 rules relating to the practice of radiologic technology in this
90-13 state and:
90-14 (A) the board verifies that the provisional
90-15 certificate holder meets the academic and experience requirements
90-16 for a certificate under this Act; and
90-17 (B) the provisional certificate holder satisfies
90-18 any other licensing requirements under this Act.
90-19 (d) The board must approve or deny a provisional certificate
90-20 holder's application for a certificate not later than the 180th day
90-21 after the date the provisional certificate is issued. The board
90-22 may extend the 180-day period if the results of an examination have
90-23 not been received by the board before the end of that period.
90-24 (e) The board may establish a fee for provisional
90-25 certificates in an amount reasonable and necessary to cover the
90-26 cost of issuing the certificate.
90-27 SECTION 14.04. Section 2.09, Medical Radiologic Technologist
91-1 Certification Act (Article 4512m, Vernon's Texas Civil Statutes),
91-2 is amended by amending Subsection (d) and adding Subsections
91-3 (e)-(j) to read as follows:
91-4 (d) The Texas Board of Health may set fees for examination
91-5 and[,] certificate issuance[, and certificate renewal]. The Texas
91-6 Board of Health shall set the fees in amounts that are reasonable
91-7 to cover the costs of administering this Act without the use of
91-8 additional general revenue funds.
91-9 (e) A person who is otherwise eligible to renew a
91-10 certificate may renew an unexpired certificate by paying the
91-11 required renewal fee to the department before the expiration date
91-12 of the certificate. A person whose certificate has expired may not
91-13 engage in activities that require a certificate until the
91-14 certificate has been renewed.
91-15 (f) A person whose certificate has been expired for 90 days
91-16 or less may renew the certificate by paying to the department a
91-17 renewal fee that is equal to 1-1/2 times the normally required
91-18 renewal fee.
91-19 (g) A person whose certificate has been expired for more
91-20 than 90 days but less than one year may renew the certificate by
91-21 paying to the department a renewal fee that is equal to two times
91-22 the normally required renewal fee.
91-23 (h) A person whose certificate has been expired for one year
91-24 or more may not renew the certificate. The person may obtain a new
91-25 certificate by complying with the requirements and procedures,
91-26 including the examination requirements, for an original
91-27 certificate.
92-1 (i) A person who held a certificate in this state, moved to
92-2 another state, and currently holds a certificate or license and has
92-3 been in practice in the other state for the two years preceding the
92-4 date of application may obtain a new certificate without
92-5 reexamination. The person must pay to the department a fee that is
92-6 equal to two times the normally required renewal fee for the
92-7 certificate.
92-8 (j) Not later than the 30th day before the date a person's
92-9 certificate is scheduled to expire, the department shall send
92-10 written notice of the impending expiration to the person at the
92-11 person's last known address according to the records of the
92-12 department.
92-13 SECTION 14.05. The Medical Radiologic Technologist
92-14 Certification Act (Article 4512m, Vernon's Texas Civil Statutes) is
92-15 amended by adding Sections 2.091 and 2.092 to read as follows:
92-16 Sec. 2.091. NOTIFICATION OF EXAMINATION RESULTS. (a) Not
92-17 later than the 30th day after the date a person takes an
92-18 examination for a certificate under this Act, the department shall
92-19 notify the person of the results of the examination.
92-20 (b) If the examination is graded or reviewed by a testing
92-21 service:
92-22 (1) the department shall notify the person of the
92-23 results of the examination not later than the 14th day after the
92-24 date the department receives the results from the testing service;
92-25 and
92-26 (2) if notice of the examination results will be
92-27 delayed for longer than 90 days after the examination date, the
93-1 department shall notify the person of the reason for the delay
93-2 before the 90th day.
93-3 (c) The department may require a testing service to notify a
93-4 person of the results of the person's examination.
93-5 (d) If requested in writing by a person who fails an
93-6 examination for a certificate administered under this Act, the
93-7 department shall furnish the person with an analysis of the
93-8 person's performance on the examination.
93-9 Sec. 2.092. STAGGERED RENEWAL DATES. The Texas Board of
93-10 Health by rule may adopt a system under which certificates expire
93-11 on various dates during the year. For the year in which the
93-12 certificate expiration date is changed, the department shall
93-13 prorate certificate fees on a monthly basis so that each
93-14 certificate holder pays only that portion of the certificate fee
93-15 that is allocable to the number of months during which the
93-16 certificate is valid. On renewal of the certificate on the new
93-17 expiration date, the total certificate renewal fee is payable.
93-18 ARTICLE 15. ADMINISTRATIVE PENALTY AND STANDARD SUNSET REVIEW
93-19 PROVISIONS APPLICABLE TO THE BOARD OF LICENSURE FOR PROFESSIONAL
93-20 MEDICAL PHYSICISTS
93-21 SECTION 15.01. Section 5(d), Texas Medical Physics Practice
93-22 Act (Article 4512n, Vernon's Texas Civil Statutes), is amended to
93-23 read as follows:
93-24 (d) Appointments to the board shall be made without regard
93-25 to the race, color, disability, creed, sex, religion, age, or
93-26 national origin of the appointee.
93-27 SECTION 15.02. Section 7(d), Texas Medical Physics Practice
94-1 Act (Article 4512n, Vernon's Texas Civil Statutes), is amended to
94-2 read as follows:
94-3 (d) A [The] public member of the board must be a resident of
94-4 this state for four years preceding appointment. A person may not
94-5 be a public member of the board if the person or the person's
94-6 spouse:
94-7 (1) is registered, certified, or licensed by a
94-8 regulatory agency in the field of medical physics;
94-9 (2) is employed by or participates in the management
94-10 of a business entity or other organization regulated by or
94-11 receiving money from the board;
94-12 (3) owns or controls, directly or indirectly, more
94-13 than a 10 percent interest in a business entity or other
94-14 organization regulated by or receiving money from the board; or
94-15 (4) uses or receives a substantial amount of tangible
94-16 goods, services, or money from the board other than compensation or
94-17 reimbursement authorized by law for board membership, attendance,
94-18 or expenses [and may not have a financial interest in any endeavor
94-19 related to the practice of medical physics].
94-20 SECTION 15.03. The Texas Medical Physics Practice Act
94-21 (Article 4512n, Vernon's Texas Civil Statutes) is amended by adding
94-22 Sections 7A and 7B to read as follows:
94-23 Sec. 7A. CONFLICT OF INTEREST. (a) In this section, "Texas
94-24 trade association" means a cooperative and voluntarily joined
94-25 association of business or professional competitors in this state
94-26 designed to assist its members and its industry or profession in
94-27 dealing with mutual business or professional problems and in
95-1 promoting their common interest.
95-2 (b) A person may not be a member of the board if:
95-3 (1) the person is an officer, employee, or paid
95-4 consultant of a Texas trade association in the field of medicine;
95-5 or
95-6 (2) the person's spouse is an officer, manager, or
95-7 paid consultant of a Texas trade association in the field of
95-8 medicine.
95-9 (c) A person may not be a member of the board if the person
95-10 is required to register as a lobbyist under Chapter 305, Government
95-11 Code, because of the person's activities for compensation on behalf
95-12 of a profession related to the operation of the board.
95-13 Sec. 7B. TRAINING. (a) A person who is appointed to and
95-14 qualifies for office as a member of the board may not vote,
95-15 deliberate, or be counted as a member in attendance at a meeting of
95-16 the board until the person completes a training program that
95-17 complies with this section.
95-18 (b) The training program must provide the person with
95-19 information regarding:
95-20 (1) the legislation that created the board;
95-21 (2) the programs operated by the board;
95-22 (3) the role and functions of the board;
95-23 (4) the rules of the board with an emphasis on the
95-24 rules that relate to disciplinary and investigatory authority;
95-25 (5) the current budget for the board;
95-26 (6) the results of the most recent formal audit of the
95-27 board;
96-1 (7) the requirements of:
96-2 (A) the open meetings law, Chapter 551,
96-3 Government Code;
96-4 (B) the public information law, Chapter 552,
96-5 Government Code;
96-6 (C) the administrative procedure law, Chapter
96-7 2001, Government Code; and
96-8 (D) other laws relating to public officials,
96-9 including conflict-of-interest laws; and
96-10 (8) any applicable ethics policies adopted by the
96-11 board or the Texas Ethics Commission.
96-12 (c) A person appointed to the board is entitled to
96-13 reimbursement, as provided by the General Appropriations Act, for
96-14 the travel expenses incurred in attending the training program
96-15 regardless of whether the attendance at the program occurs before
96-16 or after the person qualifies for office.
96-17 SECTION 15.04. Section 8, Texas Medical Physics Practice Act
96-18 (Article 4512n, Vernon's Texas Civil Statutes), is amended to read
96-19 as follows:
96-20 Sec. 8. REMOVAL FROM OFFICE. (a) It is a ground for
96-21 removal from the board if a member:
96-22 (1) does not have at the time of appointment the
96-23 qualifications required by Section 7 of this Act for appointment to
96-24 the board;
96-25 (2) does not maintain during service on the board the
96-26 qualifications required by Section 7 of this Act for appointment to
96-27 the board;
97-1 (3) is ineligible for membership under Subsection (d)
97-2 of Section 7 of this Act or Section 7A of this Act;
97-3 (4) cannot, because of illness or disability,
97-4 discharge the member's duties for a substantial part of the
97-5 member's term; or
97-6 (5) [(3)] fails to attend at least half of the
97-7 regularly scheduled board meetings held in a calendar year,
97-8 excluding meetings held while the person was not a board member,
97-9 without an excuse approved by a majority of the board.
97-10 (b) If a ground for removal of a member of the board exists,
97-11 the board's actions during the existence of the ground for removal
97-12 are not invalid for that reason.
97-13 (c) If the commissioner of health has knowledge that a
97-14 potential ground for removal exists, the commissioner shall notify
97-15 the presiding officer of the board of the potential ground. The
97-16 presiding officer shall then notify the governor and the attorney
97-17 general that a potential ground for removal exists. If the
97-18 potential ground for removal involves the presiding officer, the
97-19 commissioner shall notify the next highest ranking officer of the
97-20 board, who shall then notify the governor and the attorney general
97-21 that a potential ground for removal exists.
97-22 SECTION 15.05. Section 10, Texas Medical Physics Practice
97-23 Act (Article 4512n, Vernon's Texas Civil Statutes), is amended by
97-24 amending Subsection (a) and adding Subsection (c) to read as
97-25 follows:
97-26 (a) The governor shall designate a member of the board as
97-27 the presiding officer of the board to serve in that capacity at the
98-1 will of the governor. At the first regularly scheduled meeting of
98-2 each calendar year, the board shall elect from among its members [a
98-3 presiding officer and] an assistant presiding officer.
98-4 (c) The board shall develop and implement policies that
98-5 provide the public with a reasonable opportunity to appear before
98-6 the board and to speak on any issue under the jurisdiction of the
98-7 board.
98-8 SECTION 15.06. Section 11, Texas Medical Physics Practice
98-9 Act (Article 4512n, Vernon's Texas Civil Statutes), is amended to
98-10 read as follows:
98-11 Sec. 11. BOARD RESPONSIBILITIES. (a) The board shall:
98-12 (1) adopt and revise, with the approval of the
98-13 department, rules that are reasonably necessary for the proper
98-14 performance of its duties under this Act;
98-15 (2) determine the qualifications and fitness of
98-16 applicants for licenses, renewal of licenses, and reciprocal
98-17 licenses;
98-18 (3) charge a fee for the processing and issuance or
98-19 renewal of a license under this Act in an amount necessary to cover
98-20 costs incurred by the board in administering this Act;
98-21 (4) adopt and publish a code of ethics;
98-22 (5) adopt an official seal;
98-23 (6) conduct examinations for licensure under this Act;
98-24 (7) issue, deny, renew, revoke, and suspend licenses
98-25 under this Act;
98-26 (8) conduct hearings on complaints concerning
98-27 violations of this Act or rules adopted under this Act;
99-1 (9) prosecute or file suit to enjoin a violation of
99-2 this Act or a rule adopted under this Act; and
99-3 (10) [maintain a file on each complaint filed with the
99-4 board showing the status and final disposition of the complaint;
99-5 and]
99-6 [(11)] prepare information of consumer interest
99-7 describing the regulatory functions of the board and describing the
99-8 procedures by which complaints are filed with and resolved by the
99-9 board.
99-10 (b) The board shall recognize, [may] prepare, or [and]
99-11 administer [an optional] continuing education programs [program]
99-12 for persons licensed by the board under this Act. A license holder
99-13 must participate in the programs to the extent required by the
99-14 board to keep the person's license.
99-15 (c) The board shall develop and implement policies that
99-16 clearly separate the policymaking responsibilities of the board and
99-17 the management responsibilities of the commissioner of health, the
99-18 executive secretary, and the staff of the department.
99-19 SECTION 15.07. The Texas Medical Physics Practice Act
99-20 (Article 4512n, Vernon's Texas Civil Statutes) is amended by adding
99-21 Sections 11A and 11B to read as follows:
99-22 Sec. 11A. COMPLAINTS. (a) The board shall maintain a file
99-23 on each written complaint filed with the board. The file must
99-24 include:
99-25 (1) the name of the person who filed the complaint;
99-26 (2) the date the complaint is received by the board;
99-27 (3) the subject matter of the complaint;
100-1 (4) the name of each person contacted in relation to
100-2 the complaint;
100-3 (5) a summary of the results of the review or
100-4 investigation of the complaint; and
100-5 (6) an explanation of the reason the file was closed,
100-6 if the board closed the file without taking action other than to
100-7 investigate the complaint.
100-8 (b) The board shall provide to the person filing the
100-9 complaint and to each person who is a subject of the complaint a
100-10 copy of the board's policies and procedures relating to complaint
100-11 investigation and resolution.
100-12 (c) The board, at least quarterly until final disposition of
100-13 the complaint, shall notify the person filing the complaint and
100-14 each person who is a subject of the complaint of the status of the
100-15 investigation unless the notice would jeopardize an undercover
100-16 investigation.
100-17 Sec. 11B. RULES REGARDING ADVERTISING OR COMPETITIVE
100-18 BIDDING. (a) The board may not adopt rules restricting
100-19 advertising or competitive bidding by a license holder except to
100-20 prohibit false, misleading, or deceptive practices.
100-21 (b) In its rules to prohibit false, misleading, or deceptive
100-22 practices, the board may not include a rule that:
100-23 (1) restricts the use of any medium for advertising;
100-24 (2) restricts the use of a license holder's personal
100-25 appearance or voice in an advertisement;
100-26 (3) relates to the size or duration of an
100-27 advertisement by the license holder; or
101-1 (4) restricts the license holder's advertisement under
101-2 a trade name.
101-3 SECTION 15.08. Section 12, Texas Medical Physics Practice
101-4 Act (Article 4512n, Vernon's Texas Civil Statutes), is amended by
101-5 adding Subsection (c) to read as follows:
101-6 (c) The commissioner of health or the commissioner's
101-7 designee shall provide to members of the board, as often as
101-8 necessary, information regarding the requirements for office under
101-9 this Act, including information regarding a person's
101-10 responsibilities under applicable laws relating to standards of
101-11 conduct for state officers.
101-12 SECTION 15.09. Section 18, Texas Medical Physics Practice
101-13 Act (Article 4512n, Vernon's Texas Civil Statutes), is amended to
101-14 read as follows:
101-15 Sec. 18. LICENSING BY ENDORSEMENT OR RECIPROCITY. (a) On
101-16 receipt of an application and fee in accordance with Section 14 of
101-17 this Act, the board may waive any prerequisite for obtaining
101-18 [issue] a license to practice medical physics in this state to a
101-19 person who:
101-20 (1) holds a license to practice medical or
101-21 radiological physics in another state, territory, or jurisdiction
101-22 acceptable to the board that has requirements for the licensing of
101-23 medical or radiological physicists that are substantially the same
101-24 as the requirements of this Act; or
101-25 (2) prior to September 1, 1994:
101-26 (A) is a resident of a state, territory, or
101-27 jurisdiction without a medical physics licensure and/or practice
102-1 act;
102-2 (B) meets all other requirements for licensure
102-3 without examination in accordance with Section 19 of this Act; and
102-4 (C) has demonstrated to the board's satisfaction
102-5 a working knowledge of Texas rules pertaining to the license
102-6 specialty requested.
102-7 (b) The board may waive any prerequisite for obtaining a
102-8 license to practice medical physics in this state for an applicant
102-9 who holds a license issued by another jurisdiction with which this
102-10 state has a reciprocity agreement. The board may make an agreement,
102-11 subject to the approval of the governor, with another state to
102-12 allow for licensing by reciprocity.
102-13 SECTION 15.10. Section 21, Texas Medical Physics Practice
102-14 Act (Article 4512n, Vernon's Texas Civil Statutes), is amended to
102-15 read as follows:
102-16 Sec. 21. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE;
102-17 DISCIPLINARY ACTION. (a) The board shall [may] refuse to issue or
102-18 renew a license, suspend or revoke a license, or reprimand the
102-19 license holder[, or place a license holder on probation] for any of
102-20 the following:
102-21 (1) obtaining or renewing a license by means of fraud,
102-22 misrepresentation, or concealment of material facts;
102-23 (2) having once made application for or held a license
102-24 issued by the licensing authority of another state, territory, or
102-25 jurisdiction that was denied, suspended, or revoked by that
102-26 licensing authority;
102-27 (3) engaging in unprofessional conduct that endangered
103-1 or is likely to endanger the health, safety, or welfare of the
103-2 public as defined by board rule;
103-3 (4) violating this Act, a lawful order or rule of the
103-4 board, or the board's code of ethics; or
103-5 (5) being convicted of a felony or of a misdemeanor
103-6 that involved moral turpitude or that directly relates to a
103-7 person's duties and responsibilities as a licensed medical
103-8 physicist.
103-9 (b) The board may place on probation a person whose license
103-10 is suspended. If a license suspension is probated, the board may
103-11 require the person:
103-12 (1) to report regularly to the department on matters
103-13 that are the basis of the probation;
103-14 (2) to limit practice to the areas prescribed by the
103-15 board; or
103-16 (3) to continue or review professional education until
103-17 the person attains a degree of skill satisfactory to the board in
103-18 those areas that are the basis of the probation.
103-19 (c) Chapter 2001, Government Code, [The Administrative
103-20 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
103-21 Civil Statutes)] and board rules for a contested hearing apply to
103-22 proceedings by the board under this section.
103-23 SECTION 15.11. The Texas Medical Physics Practice Act
103-24 (Article 4512n, Vernon's Texas Civil Statutes) is amended by adding
103-25 Sections 23A and 23B to read as follows:
103-26 Sec. 23A. IMPOSITION OF ADMINISTRATIVE PENALTY. (a) The
103-27 board may impose an administrative penalty on a person licensed
104-1 under this Act who violates this Act or a rule or order adopted
104-2 under this Act. A penalty collected under this section or Section
104-3 23B of this Act shall be deposited in the state treasury in the
104-4 general revenue fund.
104-5 (b) A proceeding to impose the penalty is considered to be a
104-6 contested case under Chapter 2001, Government Code.
104-7 (c) The amount of the penalty may not exceed $500 for each
104-8 violation, and each day a violation continues or occurs is a
104-9 separate violation for purposes of imposing a penalty.
104-10 (d) The amount shall be based on:
104-11 (1) the seriousness of the violation, including the
104-12 nature, circumstances, extent, and gravity of the violation;
104-13 (2) the threat to health or safety caused by the
104-14 violation;
104-15 (3) the history of previous violations;
104-16 (4) the amount necessary to deter a future violation;
104-17 (5) whether the violator demonstrated good faith,
104-18 including when applicable whether the violator made good faith
104-19 efforts to correct the violation; and
104-20 (6) any other matter that justice may require.
104-21 (e) If the executive secretary determines that a violation
104-22 occurred, the executive secretary may issue to the board a report
104-23 stating:
104-24 (1) the facts on which the determination is based; and
104-25 (2) the executive secretary's recommendation on the
104-26 imposition of the penalty, including a recommendation on the amount
104-27 of the penalty.
105-1 (f) Within 14 days after the date the report is issued, the
105-2 executive secretary shall give written notice of the report by
105-3 certified mail to the person.
105-4 (g) The notice under Subsection (f) of this section must:
105-5 (1) include a brief summary of the alleged violation;
105-6 (2) state the amount of the recommended penalty; and
105-7 (3) inform the person of the person's right to a
105-8 hearing on the occurrence of the violation, the amount of the
105-9 penalty, or both.
105-10 (h) Within 20 days after the date the person receives the
105-11 notice under Subsection (f) of this section, the person in writing
105-12 may:
105-13 (1) accept the determination and recommended penalty
105-14 of the executive secretary; or
105-15 (2) make a request for a hearing on the occurrence of
105-16 the violation, the amount of the penalty, or both.
105-17 (i) If the person accepts the determination and recommended
105-18 penalty of the executive secretary, the board by order shall
105-19 approve the determination and impose the recommended penalty.
105-20 (j) If the person requests a hearing or fails to respond in
105-21 a timely manner to the notice, the board shall refer the matter to
105-22 the State Office of Administrative Hearings, which shall promptly
105-23 set a hearing date and give written notice of the time and place of
105-24 the hearing to the person. An administrative law judge of the
105-25 State Office of Administrative Hearings shall conduct the hearing.
105-26 (k) The administrative law judge shall make findings of fact
105-27 and conclusions of law and promptly issue to the board a proposal
106-1 for a decision about the occurrence of the violation and the amount
106-2 of a proposed penalty.
106-3 (l) Based on the findings of fact, conclusions of law, and
106-4 proposal for a decision, the board by order may:
106-5 (1) find that a violation occurred and impose a
106-6 penalty; or
106-7 (2) find that a violation did not occur.
106-8 (m) The notice of the board's order under Subsection (l) of
106-9 this section that is sent to the person in accordance with Chapter
106-10 2001, Government Code, must include a statement of the right of the
106-11 person to judicial review of the order.
106-12 Sec. 23B. PAYMENT AND COLLECTION OF ADMINISTRATIVE PENALTY;
106-13 JUDICIAL REVIEW. (a) Within 30 days after the date an order of
106-14 the board under Subsection (l) of Section 23A of this Act that
106-15 imposes an administrative penalty becomes final, the person shall:
106-16 (1) pay the penalty; or
106-17 (2) file a petition for judicial review of the board's
106-18 order contesting the occurrence of the violation, the amount of the
106-19 penalty, or both.
106-20 (b) Within the 30-day period prescribed by Subsection (a) of
106-21 this section, a person who files a petition for judicial review
106-22 may:
106-23 (1) stay enforcement of the penalty by:
106-24 (A) paying the penalty to the court for
106-25 placement in an escrow account; or
106-26 (B) giving the court a supersedeas bond approved
106-27 by the court that:
107-1 (i) is for the amount of the penalty; and
107-2 (ii) is effective until all judicial
107-3 review of the board's order is final; or
107-4 (2) request the court to stay enforcement of the
107-5 penalty by:
107-6 (A) filing with the court a sworn affidavit of
107-7 the person stating that the person is financially unable to pay the
107-8 penalty and is financially unable to give the supersedeas bond; and
107-9 (B) sending a copy of the affidavit to the board
107-10 by certified mail.
107-11 (c) If the board receives a copy of an affidavit under
107-12 Subsection (b)(2) of this section, the board may file with the
107-13 court, within five days after the date the copy is received, a
107-14 contest to the affidavit. The court shall hold a hearing on the
107-15 facts alleged in the affidavit as soon as practicable and shall
107-16 stay the enforcement of the penalty on finding that the alleged
107-17 facts are true. The person who files an affidavit has the burden
107-18 of proving that the person is financially unable to pay the penalty
107-19 or to give a supersedeas bond.
107-20 (d) If the person does not pay the penalty and the
107-21 enforcement of the penalty is not stayed, the penalty may be
107-22 collected. The attorney general may sue to collect the penalty.
107-23 (e) If the court sustains the finding that a violation
107-24 occurred, the court may uphold or reduce the amount of the penalty
107-25 and order the person to pay the full or reduced amount of the
107-26 penalty.
107-27 (f) If the court does not sustain the finding that a
108-1 violation occurred, the court shall order that a penalty is not
108-2 owed.
108-3 (g) If the person paid the penalty and if the amount of the
108-4 penalty is reduced or the penalty is not upheld by the court, the
108-5 court shall order, when the court's judgment becomes final, that
108-6 the appropriate amount plus accrued interest be remitted to the
108-7 person within 30 days after the date that the judgment of the court
108-8 becomes final. The interest accrues at the rate charged on loans to
108-9 depository institutions by the New York Federal Reserve Bank. The
108-10 interest shall be paid for the period beginning on the date the
108-11 penalty is paid and ending on the date the penalty is remitted.
108-12 (h) If the person gave a supersedeas bond and the penalty is
108-13 not upheld by the court, the court shall order, when the court's
108-14 judgment becomes final, the release of the bond. If the person gave
108-15 a supersedeas bond and the amount of the penalty is reduced, the
108-16 court shall order the release of the bond after the person pays the
108-17 reduced amount.
108-18 SECTION 15.12. The Texas Medical Physics Practice Act
108-19 (Article 4512n, Vernon's Texas Civil Statutes) is amended by adding
108-20 Section 27 to read as follows:
108-21 Sec. 27. PROVISIONAL LICENSES. (a) The board may issue a
108-22 provisional license to an applicant currently licensed or certified
108-23 in another jurisdiction who seeks a license in this state and who:
108-24 (1) has been licensed or certified in good standing as
108-25 a practitioner of medical or radiologic physics for at least two
108-26 years in another jurisdiction, including a foreign country, that
108-27 has licensing or certification requirements substantially
109-1 equivalent to the requirements of this Act;
109-2 (2) has passed a national or other examination
109-3 recognized by the board relating to the practice of medical or
109-4 radiologic physics; and
109-5 (3) is sponsored by a person licensed by the board
109-6 under this Act with whom the provisional license holder will
109-7 practice during the time the person holds a provisional license.
109-8 (b) The board may waive the requirement of Subsection (a)(3)
109-9 for an applicant if the board determines that compliance with that
109-10 subsection would be a hardship to the applicant.
109-11 (c) A provisional license is valid until the date the board
109-12 approves or denies the provisional license holder's application for
109-13 a license. The board shall issue a license under this Act to the
109-14 provisional license holder if:
109-15 (1) the provisional license holder is eligible to be
109-16 certified under Section 18 of this Act; or
109-17 (2) the provisional license holder passes the part of
109-18 the examination under Section 16 of this Act that relates to the
109-19 applicant's knowledge and understanding of the laws and rules
109-20 relating to the practice of medical physics in this state and:
109-21 (A) the board verifies that the provisional
109-22 license holder meets the academic and experience requirements for a
109-23 license under this Act; and
109-24 (B) the provisional license holder satisfies any
109-25 other licensing requirements under this Act.
109-26 (d) The board must approve or deny a provisional license
109-27 holder's application for a license not later than the 180th day
110-1 after the date the provisional license is issued. The board may
110-2 extend the 180-day period if the results of an examination have not
110-3 been received by the board before the end of that period.
110-4 (e) The board may establish a fee for provisional licenses
110-5 in an amount reasonable and necessary to cover the cost of issuing
110-6 the license.
110-7 SECTION 15.13. Subsection (e), Section 7, Texas Medical
110-8 Physics Practice Act (Article 4512n, Vernon's Texas Civil
110-9 Statutes), is repealed.
110-10 SECTION 15.14. The changes in law made by this Act in the
110-11 prohibitions applying to members of the Texas Board of Licensure
110-12 for Professional Medical Physicists do not affect the entitlement
110-13 of a member serving on the board immediately before September 1,
110-14 1999, to continue to serve and function as a member of the board
110-15 for the remainder of the member's term. The changes in law apply
110-16 only to a member appointed on or after September 1, 1999.
110-17 ARTICLE 16. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO
110-18 THE REGULATION OF MASSAGE THERAPISTS
110-19 SECTION 16.01. Subsection (b), Section 2, Chapter 752, Acts
110-20 of the 69th Legislature, Regular Session, 1985 (Article 4512k,
110-21 Vernon's Texas Civil Statutes), is amended to read as follows:
110-22 (b) An individual who registers as a massage therapist under
110-23 this Act must present evidence satisfactory to the board that the
110-24 person:
110-25 (1) has satisfactorily completed massage therapy
110-26 studies in a 300 hour, supervised course of instruction provided by
110-27 a massage therapy instructor, by a massage school registered by the
111-1 department, by a state approved educational institution, or by any
111-2 combination of instructors or schools, in which 125 hours are
111-3 dedicated to the study of Swedish massage therapy techniques taught
111-4 by a massage therapy instructor, 50 hours to the study of anatomy,
111-5 25 hours to the study of physiology, 15 hours to the study of
111-6 hydrotherapy, 15 hours to the study of business practices and
111-7 professional ethics standards, 20 hours to the study of health and
111-8 hygiene, and 50 hours to an internship program; or
111-9 (2) [is registered as a massage therapist in another
111-10 state or country that has and maintains standards and requirements
111-11 of practice and licensing or registration that substantially
111-12 conform to those of this state, as determined by the department; or]
111-13 [(3)] has practiced massage therapy as a profession
111-14 for not less than five years in another state or country that does
111-15 not have or maintain standards and requirements of practice and
111-16 licensing or registration that substantially conform to those of
111-17 this state, as determined by the department.
111-18 SECTION 16.02. Chapter 752, Acts of the 69th Legislature,
111-19 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
111-20 Statutes), is amended by adding Sections 2C and 2D to read as
111-21 follows:
111-22 Sec. 2C. APPLICANT REGISTERED IN ANOTHER JURISDICTION.
111-23 (a) The board may waive any prerequisite to obtaining a
111-24 certificate of registration for an applicant for registration as a
111-25 massage therapist or massage therapy instructor after reviewing the
111-26 applicant's credentials and determining that the applicant holds a
111-27 license or certificate of registration issued by another
112-1 jurisdiction that has licensing or registration requirements
112-2 substantially equivalent to those of this state.
112-3 (b) The board may waive any prerequisite to obtaining a
112-4 certificate of registration for an applicant for registration as a
112-5 massage therapist or massage therapy instructor who holds a license
112-6 or certificate of registration issued by another jurisdiction with
112-7 which this state has a reciprocity agreement. The board may make
112-8 an agreement, subject to the approval of the governor, with another
112-9 state to allow for registration by reciprocity.
112-10 Sec. 2D. PROVISIONAL REGISTRATION. (a) The board may issue
112-11 a provisional certificate of registration to an applicant for
112-12 registration as a massage therapist or massage therapy instructor
112-13 currently licensed or registered in another jurisdiction who seeks
112-14 a certificate of registration in this state and who:
112-15 (1) has been licensed or registered in good standing
112-16 as a massage therapist or massage therapy instructor, as
112-17 applicable, for at least two years in another jurisdiction,
112-18 including a foreign country, that has licensing or registration
112-19 requirements substantially equivalent to the requirements of this
112-20 Act;
112-21 (2) has passed a national or other examination
112-22 recognized by the board relating to the practice of massage
112-23 therapy; and
112-24 (3) is sponsored by a person registered by the board
112-25 under this Act with whom the provisional registrant will practice
112-26 during the time the person holds a provisional certificate of
112-27 registration.
113-1 (b) The board may waive the requirement of Subsection (a)(3)
113-2 for an applicant if the board determines that compliance with that
113-3 subsection would be a hardship to the applicant.
113-4 (c) A provisional certificate of registration is valid until
113-5 the date the board approves or denies the provisional registrant's
113-6 application for registration. The board shall issue a certificate
113-7 of registration under this Act to the provisional registrant if:
113-8 (1) the provisional registrant is eligible to be
113-9 certified under Section 2C of this Act; or
113-10 (2) the provisional registrant passes the part of the
113-11 examination under Section 7 of this Act that relates to the
113-12 applicant's knowledge and understanding of the laws and rules
113-13 relating to the practice of massage therapy in this state and:
113-14 (A) the board verifies that the provisional
113-15 registrant meets the academic and experience requirements for
113-16 registration under this Act; and
113-17 (B) the provisional registrant satisfies any
113-18 other registration requirements under this Act.
113-19 (d) The board must approve or deny a provisional
113-20 registrant's application for a certificate of registration not
113-21 later than the 180th day after the date the provisional certificate
113-22 of registration is issued. The board may extend the 180-day period
113-23 if the results of an examination have not been received by the
113-24 board before the end of that period.
113-25 (e) The board may establish a fee for provisional
113-26 certificates of registration in an amount reasonable and necessary
113-27 to cover the cost of issuing the certificate of registration.
114-1 SECTION 16.03. Chapter 752, Acts of the 69th Legislature,
114-2 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
114-3 Statutes), is amended by adding Sections 7E, 7F, and 7G to read as
114-4 follows:
114-5 Sec. 7E. NOTIFICATION OF EXAMINATION RESULTS. (a) Not
114-6 later than the 30th day after the date a person takes a
114-7 registration examination under this Act, the department shall
114-8 notify the person of the results of the examination.
114-9 (b) If the examination is graded or reviewed by a testing
114-10 service:
114-11 (1) the department shall notify the person of the
114-12 results of the examination not later than the 14th day after the
114-13 date the department receives the results from the testing service;
114-14 and
114-15 (2) if notice of the examination results will be
114-16 delayed for longer than 90 days after the examination date, the
114-17 department shall notify the person of the reason for the delay
114-18 before the 90th day.
114-19 (c) The department may require a testing service to notify a
114-20 person of the results of the person's examination.
114-21 (d) If requested in writing by a person who fails a
114-22 registration examination administered under this Act, the
114-23 department shall furnish the person with an analysis of the
114-24 person's performance on the examination.
114-25 Sec. 7F. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING
114-26 BY REGISTRANT. (a) The board may not adopt rules restricting
114-27 advertising or competitive bidding by a registrant except to
115-1 prohibit false, misleading, or deceptive practices.
115-2 (b) In its rules to prohibit false, misleading, or deceptive
115-3 practices, the board may not include a rule that:
115-4 (1) restricts the use of any medium for advertising;
115-5 (2) restricts the use of a registrant's personal
115-6 appearance or voice in an advertisement;
115-7 (3) relates to the size or duration of an
115-8 advertisement by the registrant; or
115-9 (4) restricts the registrant's advertisement under a
115-10 trade name.
115-11 Sec. 7G. CONTINUING EDUCATION. The board shall recognize,
115-12 prepare, or administer continuing education programs for its
115-13 registrants. A registrant must participate in the programs to the
115-14 extent required by the board to keep the person's certificate of
115-15 registration.
115-16 SECTION 16.04. Sections 11 and 12, Chapter 752, Acts of the
115-17 69th Legislature, Regular Session, 1985 (Article 4512k, Vernon's
115-18 Texas Civil Statutes), are amended to read as follows:
115-19 Sec. 11. REGISTRATION, DENIAL, PROBATION, SUSPENSION, OR
115-20 REVOCATION. (a) The board [department] may refuse to issue a
115-21 registration certificate to an applicant and shall[, may] suspend,
115-22 [or] revoke, or refuse to renew a registration certificate, or
115-23 shall reprimand a registrant [may place a registered person,
115-24 including a massage school, massage therapy instructor, or massage
115-25 establishment, on probation] for any of the following causes:
115-26 (1) obtaining a certificate by means of fraud,
115-27 misrepresentation, or concealment of material facts;
116-1 (2) selling, bartering, or offer to sell or barter a
116-2 registration certificate;
116-3 (3) violating any rule adopted by the board;
116-4 (4) engaging in unprofessional conduct that has
116-5 endangered or is likely to endanger the health, welfare, or safety
116-6 of the public as defined by the rules established by the board;
116-7 (5) violating a regulation adopted by a political
116-8 subdivision under Chapter 243, Local Government Code; or
116-9 (6) violating any provisions of this Act.
116-10 (b) The board may place on probation a person, including a
116-11 massage school, massage therapy instructor, or massage
116-12 establishment, whose registration certificate is suspended. If a
116-13 registration suspension is probated, the board may require the
116-14 person:
116-15 (1) to report regularly to the department on matters
116-16 that are the basis of the probation;
116-17 (2) to limit practice to the areas prescribed by the
116-18 board; or
116-19 (3) to continue or review professional education until
116-20 the person attains a degree of skill satisfactory to the board in
116-21 those areas that are the basis of the probation.
116-22 (c) An individual who has been convicted of, entered a plea
116-23 of nolo contendere or guilty to, or received deferred adjudication
116-24 to crimes or offenses involving prostitution or sexual offenses is
116-25 ineligible for registration as a massage therapist, massage therapy
116-26 instructor, massage school, or massage establishment. The
116-27 department shall revoke the registration of a person registered as
117-1 a massage therapist or massage therapy instructor who is convicted
117-2 of, enters a plea of nolo contendere or guilty to, or receives
117-3 deferred adjudication to a crime or offense involving prostitution
117-4 or other sexual offenses, or who the department determines has
117-5 practiced or administered massage therapy at or for a sexually
117-6 oriented business. The department shall revoke the registration of
117-7 a person registered as a massage school or massage establishment if
117-8 the department determines that the school or establishment is a
117-9 sexually oriented business, or that a crime or offense involving
117-10 prostitution or other sexual offenses and resulting in a
117-11 conviction, or to which a plea of nolo contendere or guilty was
117-12 entered or deferred adjudication was received, has occurred on the
117-13 premises of the school or establishment.
117-14 (d) [(c)] A person whose application for registration is
117-15 denied, who has been reprimanded, or whose registration is
117-16 suspended or revoked is entitled to a hearing before the department
117-17 if the person submits a written request to the department.
117-18 Hearings are governed by department rules for a contested hearing
117-19 and by Chapter 2001, Government Code [the Administrative Procedure
117-20 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
117-21 Statutes)].
117-22 (e) [(d)] A person convicted of a violation of this Act is
117-23 ineligible for registration as a massage therapist, massage therapy
117-24 instructor, massage school, or massage establishment for a period
117-25 of five years.
117-26 Sec. 12. RENEWAL OF REGISTRATION. (a) Registration under
117-27 this Act is subject to periodic renewal and expires unless the
118-1 registered person submits an application for renewal accompanied by
118-2 the renewal fee prescribed by the department or by the late fee
118-3 prescribed by this section.
118-4 (b) The department shall adopt a system under which
118-5 registrations expire and are renewed on various dates of the year.
118-6 Initial registration fees shall be prorated so that a registered
118-7 person pays only for that part of the renewal period for which the
118-8 registration is issued until the expiration date of the
118-9 registration.
118-10 (c) A person who is otherwise eligible to renew a
118-11 registration may renew an unexpired registration by paying the
118-12 required renewal fee to the department before the expiration date
118-13 of the registration. A person whose registration has expired may
118-14 not engage in activities that require registration until the
118-15 registration has been renewed.
118-16 (d) A person whose registration has been expired for 90
118-17 days or less may renew the registration by paying to the
118-18 department a renewal fee that is equal to 1-1/2 times the normally
118-19 required renewal fee.
118-20 (e) A person whose registration has been expired for more
118-21 than 90 days but less than one year may renew the registration by
118-22 paying to the department a renewal fee that is equal to two times
118-23 the normally required renewal fee.
118-24 (f) A person whose registration has been expired for one
118-25 year or more may not renew the registration. The person may
118-26 register by complying with the requirements and procedures,
118-27 including the examination requirements, for originally registering.
119-1 (g) A person who was registered in this state, moved to
119-2 another state, and is currently registered or licensed and has been
119-3 in practice in the other state for the two years preceding the date
119-4 of application may register without reexamination. The person must
119-5 pay to the department a fee that is equal to two times the normally
119-6 required renewal fee for registration.
119-7 (h) Not later than the 30th day before the date a person's
119-8 registration is scheduled to expire, the department shall send
119-9 written notice of the impending expiration to the person at the
119-10 person's last known address according to the records of the
119-11 department. [A person registered under this Act who does not renew
119-12 registration by the expiration date may renew the registration not
119-13 later than the first anniversary of the expiration date by meeting
119-14 the requirements set forth in this section and paying a late
119-15 penalty fee.]
119-16 [(d) The registration of a person who fails to meet the
119-17 renewal requirements of this section is void. Such a person must
119-18 submit a new application, pay the appropriate fees, and meet the
119-19 current requirements for registration.]
119-20 ARTICLE 17. STANDARD SUNSET REVIEW PROVISIONS AND CERTAIN OTHER
119-21 PROVISIONS APPLICABLE TO STATE REGULATION INVOLVING EMERGENCY
119-22 MEDICAL SERVICES
119-23 SECTION 17.01. Subchapter A, Chapter 773, Health and Safety
119-24 Code, is amended by adding Section 773.012 to read as follows:
119-25 Sec. 773.012. ADVISORY COUNCIL. (a) The governor shall
119-26 appoint an advisory council to advise the board regarding matters
119-27 related to the responsibilities of the board, commissioner, and
120-1 department under this chapter.
120-2 (b) The advisory council is composed of the following 15
120-3 members appointed by the governor:
120-4 (1) a board-certified emergency physician, appointed
120-5 from a list of names recommended by a statewide professional
120-6 association of emergency physicians;
120-7 (2) a licensed physician who is an emergency medical
120-8 services medical director, appointed from a list of names
120-9 recommended by a statewide professional association of emergency
120-10 medical services medical directors;
120-11 (3) a fire chief for a municipality that provides
120-12 emergency medical services, appointed from a list of names
120-13 recommended by a statewide fire chiefs association;
120-14 (4) an officer or employee of a private provider of
120-15 emergency medical services, appointed from a list of names
120-16 recommended by a statewide association of private providers of
120-17 emergency medical services;
120-18 (5) a volunteer who provides emergency medical
120-19 services, appointed from a list of names recommended by a statewide
120-20 association of volunteers;
120-21 (6) an educator in the field of emergency medical
120-22 services;
120-23 (7) a member of an emergency medical services air
120-24 medical team or unit, appointed from a list of names recommended by
120-25 a statewide emergency medical services air medical association;
120-26 (8) a representative of a fire department that
120-27 provides emergency medical services, appointed from a list of names
121-1 recommended by a statewide association of firefighters;
121-2 (9) a representative of hospitals, appointed from a
121-3 list of names recommended by a statewide association of hospitals;
121-4 (10) a representative of a county provider of
121-5 emergency medical services; and
121-6 (11) five representatives of the general public who
121-7 are not qualified to serve under another subdivision of this
121-8 subsection.
121-9 (c) A person may not be a public member of the advisory
121-10 council if the person or the person's spouse:
121-11 (1) is registered, certified, or licensed by a
121-12 regulatory agency in the field of emergency medical services;
121-13 (2) is employed by or participates in the management
121-14 of a business entity or other organization regulated by or
121-15 receiving money from the department;
121-16 (3) owns or controls, directly or indirectly, more
121-17 than a 10 percent interest in a business entity or other
121-18 organization regulated by or receiving money from the department;
121-19 or
121-20 (4) uses or receives a substantial amount of tangible
121-21 goods, services, or money from the department other than
121-22 reimbursement authorized by law for advisory council membership,
121-23 attendance, or expenses.
121-24 (d) In this subsection, "Texas trade association" means a
121-25 cooperative and voluntarily joined association of business or
121-26 professional competitors in this state designed to assist its
121-27 members and its industry or profession in dealing with mutual
122-1 business or professional problems and in promoting their common
122-2 interest. A person may not be a member of the advisory council if:
122-3 (1) the person is an officer, employee, or paid
122-4 consultant of a Texas trade association in the field of emergency
122-5 medical services; or
122-6 (2) the person's spouse is an officer, manager, or
122-7 paid consultant of a Texas trade association in the field of
122-8 emergency medical services.
122-9 (e) A person may not be a member of the advisory council if
122-10 the person is required to register as a lobbyist under Chapter 305,
122-11 Government Code, because of the person's activities for
122-12 compensation on behalf of a profession related to the operation of
122-13 the department.
122-14 (f) Members of the advisory council serve staggered six-year
122-15 terms with the terms of five members expiring January 1 of each
122-16 even-numbered year. A vacancy on the advisory council is filled in
122-17 the same manner as the original appointment for the unexpired term.
122-18 (g) The governor shall appoint the presiding officer of the
122-19 advisory council.
122-20 (h) A member of the advisory council serves without
122-21 compensation. Chapter 2110, Government Code, does not apply to the
122-22 size, composition, or duration of the advisory council.
122-23 (i) The advisory council shall meet at least quarterly in
122-24 the city of Austin. The advisory council shall meet as provided by
122-25 procedural rules adopted by the advisory council or at the call of
122-26 the presiding officer. The advisory council may appoint committees
122-27 it considers necessary to perform its duties.
123-1 (j) The advisory council periodically shall review board
123-2 rules relating to this chapter and may recommend changes in those
123-3 rules to the board. The board and the commissioner shall ensure
123-4 that the advisory council is given adequate time and opportunity to
123-5 review and comment on each rule proposed for adoption by the board
123-6 under this chapter, including the amendment or repeal of an
123-7 existing rule, but not including an emergency rule.
123-8 SECTION 17.02. Section 773.050, Health and Safety Code, is
123-9 amended by amending Subsection (b) and adding Subsection (f) to
123-10 read as follows:
123-11 (b) The board by rule shall establish minimum standards for:
123-12 (1) staffing an advanced life-support emergency
123-13 medical services vehicle, a mobile intensive-care unit, or a
123-14 specialized emergency medical services vehicle;
123-15 (2) emergency medical services personnel certification
123-16 and performance, including provisional certification,
123-17 certification, decertification, recertification, suspension,
123-18 emergency suspension, and probation;
123-19 (3) the approval of courses and training programs, the
123-20 certification of program instructors, examiners, and course
123-21 coordinators for emergency medical services personnel training, and
123-22 the revocation and probation of an approval or certification;
123-23 (4) [continuing education programs and] examinations
123-24 of emergency medical services personnel;
123-25 (5) medical supervision of basic and advanced
123-26 life-support systems;
123-27 (6) granting, suspending, and revoking a license for
124-1 emergency medical services providers; and
124-2 (7) emergency medical services vehicles.
124-3 (f) The board shall recognize, prepare, or administer
124-4 continuing education programs for certified personnel. A
124-5 certificate holder must participate in the programs to the extent
124-6 required by the board to remain certified.
124-7 SECTION 17.03. Subchapter C, Chapter 773, Health and Safety
124-8 Code, is amended by adding Section 773.0505 to read as follows:
124-9 Sec. 773.0505. RULES REGARDING ADVERTISING OR COMPETITIVE
124-10 BIDDING. (a) The board may not adopt rules restricting
124-11 advertising or competitive bidding by a license or certificate
124-12 holder except to prohibit false, misleading, or deceptive
124-13 practices.
124-14 (b) In its rules to prohibit false, misleading, or deceptive
124-15 practices, the board may not include a rule that:
124-16 (1) restricts the use of any medium for advertising;
124-17 (2) restricts the use of a license or certificate
124-18 holder's personal appearance or voice in an advertisement;
124-19 (3) relates to the size or duration of an
124-20 advertisement by the license or certificate holder; or
124-21 (4) restricts the license or certificate holder's
124-22 advertisement under a trade name.
124-23 SECTION 17.04. Section 773.055, Health and Safety Code, is
124-24 amended by adding Subsections (g) and (h) to read as follows:
124-25 (g) The board by rule may adopt a system under which
124-26 certificates expire on various dates during the year. For the year
124-27 in which the certificate expiration date is changed, the department
125-1 shall prorate certificate fees on a monthly basis so that each
125-2 certificate holder pays only that portion of the certificate fee
125-3 that is allocable to the number of months during which the
125-4 certificate is valid. On renewal of the certificate on the new
125-5 expiration date, the total certificate renewal fee is payable.
125-6 (h) The department shall ensure that the written
125-7 examinations and any other tests that the department requires a
125-8 person to take and pass to obtain or retain certification as
125-9 emergency medical services personnel shall be administered during
125-10 the course of a year at various locations around the state so that
125-11 a person who resides in any part of the state will be able to take
125-12 the examinations or tests without having to travel a distance that
125-13 as a practical matter requires either travel by air or an overnight
125-14 stay.
125-15 SECTION 17.05. Section 773.059, Health and Safety Code, is
125-16 amended to read as follows:
125-17 Sec. 773.059. LATE RECERTIFICATION. (a) A person who is
125-18 otherwise eligible to renew a certificate may renew an unexpired
125-19 certificate by paying the required renewal fee to the department
125-20 before the expiration date of the certificate. A person whose
125-21 certificate has expired may not engage in activities that require
125-22 certification until the certificate has been renewed.
125-23 (b) A person whose certificate has been expired for 90 days
125-24 or less may renew the certificate by paying to the department a
125-25 renewal fee that is equal to 1-1/2 times the normally required
125-26 renewal fee.
125-27 (c) A person whose certificate has been expired for more
126-1 than 90 days but less than one year may renew the certificate by
126-2 paying to the department a renewal fee that is equal to two times
126-3 the normally required renewal fee.
126-4 (d) A person whose certificate has been expired for one year
126-5 or more may not renew the certificate. The person may become
126-6 certified by complying with the requirements and procedures,
126-7 including the examination requirements, for an original
126-8 certification.
126-9 (e) A person who was certified in this state, moved to
126-10 another state, and is currently certified or licensed and has been
126-11 in practice in the other state for the two years preceding the date
126-12 of application may become certified without reexamination. The
126-13 person must pay to the department a fee that is equal to two times
126-14 the normally required renewal fee for certification.
126-15 (f) Not later than the 30th day before the date a person's
126-16 certificate is scheduled to expire, the department shall send
126-17 written notice of the impending expiration to the person at the
126-18 person's last known address according to the records of the
126-19 department. [Except as provided by Subsection (b), a person
126-20 applying for recertification whose application is received after
126-21 the expiration date of the person's certificate must pay a late fee
126-22 of $25.]
126-23 (g) [(b)] A person certified by the department who is
126-24 deployed in support of military, security, or other action by the
126-25 United Nations Security Council, a national emergency declared by
126-26 the president of the United States, or a declaration of war by the
126-27 United States Congress is eligible for recertification under
127-1 Section 773.050 on the person's demobilization for one calendar
127-2 year after the date of demobilization.
127-3 SECTION 17.06. Section 773.061, Health and Safety Code, is
127-4 amended to read as follows:
127-5 Sec. 773.061. DISCIPLINARY ACTIONS. (a) For a violation of
127-6 this chapter or a rule adopted under this chapter, the board shall
127-7 revoke, suspend, or refuse to renew a license or certificate of or
127-8 shall reprimand [department may]:
127-9 (1) [decertify, suspend, place on emergency
127-10 suspension, or place on probation] emergency medical services
127-11 personnel;
127-12 (2) [revoke or place on probation course or training
127-13 program approval;]
127-14 [(3) revoke, suspend, or place on probation the
127-15 certificate of] a program instructor, examiner, or course
127-16 coordinator; and
127-17 (3) [(4) revoke, suspend, or place on probation] an
127-18 emergency medical services provider license holder.
127-19 (b) For a violation of this chapter or a rule adopted under
127-20 this chapter, the board shall revoke, suspend, or refuse to renew
127-21 approval of a course or training program.
127-22 (c) For a violation of this chapter or a rule adopted under
127-23 this chapter, the board may place on emergency suspension emergency
127-24 medical services personnel.
127-25 (d) The board may place on probation a course or training
127-26 program or a person, including emergency medical services
127-27 personnel, an emergency medical services provider license holder,
128-1 or a program instructor, examiner, or course coordinator, whose
128-2 certificate, license, or approval is suspended. If a suspension is
128-3 probated, the board may require the person or the sponsor of a
128-4 course or training program, as applicable:
128-5 (1) to report regularly to the department on matters
128-6 that are the basis of the probation;
128-7 (2) to limit practice to the areas prescribed by the
128-8 board; or
128-9 (3) to continue or review professional education until
128-10 the person attains a degree of skill satisfactory to the board in
128-11 those areas that are the basis of the probation.
128-12 (e) Except as provided by Section 773.062, the procedures by
128-13 which the department takes action under this section and the
128-14 procedures by which that action is appealed are governed by the
128-15 procedures for a contested case hearing under Chapter 2001,
128-16 Government Code.
128-17 SECTION 17.07. The Texas Board of Health shall abolish any
128-18 advisory body created by rule to perform the functions assigned to
128-19 the advisory council created by Section 773.012, Health and Safety
128-20 Code, as added by this Act.
128-21 ARTICLE 18. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO THE
128-22 REGULATION OF CERTAIN ASBESTOS-RELATED ACTIVITIES
128-23 SECTION 18.01. The Texas Asbestos Health Protection Act
128-24 (Article 4477-3a, Vernon's Texas Civil Statutes) is amended by
128-25 adding Section 5A to read as follows:
128-26 Sec. 5A. PROVISIONAL LICENSE OR REGISTRATION. (a) The
128-27 department may provisionally license or register an applicant
129-1 currently licensed or registered in another jurisdiction who seeks
129-2 a license or registration in this state and who:
129-3 (1) has been licensed or registered in good standing
129-4 to perform the relevant asbestos-related activity for at least two
129-5 years in another jurisdiction, including a foreign country, that
129-6 has licensing or registration requirements substantially equivalent
129-7 to the requirements of this Act;
129-8 (2) has passed a national or other examination
129-9 recognized by the department relating to the relevant
129-10 asbestos-related activity, if the department requires an
129-11 examination under Subsection (h) of Section 10 of this Act to
129-12 obtain the license or registration required to perform that
129-13 activity; and
129-14 (3) is sponsored by a person licensed by the
129-15 department under this Act with whom the provisional license or
129-16 registration holder will practice during the time the person holds
129-17 a provisional license or registration.
129-18 (b) The department may waive the requirement of Subsection
129-19 (a)(3) for an applicant if the department determines that
129-20 compliance with that subsection would be a hardship to the
129-21 applicant.
129-22 (c) A provisional license or registration is valid until the
129-23 date the department approves or denies the provisional license or
129-24 registration holder's application for licensing or registration.
129-25 The department shall issue a license or registration under this Act
129-26 to the provisional license or registration holder if:
129-27 (1) the provisional license or registration holder is
130-1 eligible to be licensed or registered under Subsection (j) of
130-2 Section 12 of this Act; or
130-3 (2) the provisional license or registration holder
130-4 passes the part of the examination under Subsection (h) of Section
130-5 10 of this Act that relates to the applicant's knowledge and
130-6 understanding of the laws and rules relating to the performance of
130-7 the relevant asbestos-related activity in this state, if the
130-8 department requires an examination under Subsection (h) of Section
130-9 10 of this Act to obtain the license or registration required to
130-10 perform that activity, and:
130-11 (A) the department verifies that the provisional
130-12 license or registration holder meets the relevant academic and
130-13 experience requirements for the requested license or registration
130-14 under this Act; and
130-15 (B) the provisional license or registration
130-16 holder satisfies any other applicable licensing or registration
130-17 requirements under this Act.
130-18 (d) The department must approve or deny a provisional
130-19 license or registration holder's application for a license or
130-20 registration not later than the 180th day after the date the
130-21 provisional license or registration is issued. The department may
130-22 extend the 180-day period if the results of an examination have not
130-23 been received by the department before the end of that period.
130-24 (e) The department may establish a fee for a provisional
130-25 license or registration in an amount reasonable and necessary to
130-26 cover the cost of issuing the license or registration.
130-27 SECTION 18.02. Section 6, Texas Asbestos Health Protection
131-1 Act (Article 4477-3a, Vernon's Texas Civil Statutes), is amended by
131-2 amending Subsections (a) and (f) and adding Subsections (g)-(k) to
131-3 read as follows:
131-4 (a) A license issued under this Act expires on the first
131-5 anniversary of its effective date, unless the license is renewed
131-6 for a one-year term as provided by this section. The department by
131-7 rule may adopt a system under which licenses expire on various
131-8 dates during the year. For the year in which the license
131-9 expiration date is changed, the department shall prorate license
131-10 fees on a monthly basis so that each license holder pays only that
131-11 portion of the license fee that is allocable to the number of
131-12 months during which the license is valid. On renewal of the license
131-13 on the new expiration date, the total license renewal fee is
131-14 payable.
131-15 (f) A licensee may request a replacement license certificate
131-16 on completion of an appropriate application. [The fee for
131-17 reissuance shall not exceed $50.]
131-18 (g) A person whose license has expired may not engage in
131-19 activities that require a license until the license has been
131-20 renewed.
131-21 (h) A person whose license has been expired for 90 days or
131-22 less may renew the license by paying to the department a renewal
131-23 fee that is equal to 1-1/2 times the normally required renewal fee.
131-24 (i) A person whose license has been expired for more than 90
131-25 days but less than one year may renew the license by paying to the
131-26 department a renewal fee that is equal to two times the normally
131-27 required renewal fee.
132-1 (j) A person whose license has been expired for one year or
132-2 more may not renew the license. The person may obtain a new
132-3 license by complying with the requirements and procedures,
132-4 including the examination requirements, for obtaining an original
132-5 license.
132-6 (k) A person who was licensed in this state, moved to
132-7 another state, and is currently licensed and has been in practice
132-8 in the other state for the two years preceding the date of
132-9 application may obtain a new license without reexamination. The
132-10 person must pay to the department a fee that is equal to two times
132-11 the normally required renewal fee for the license.
132-12 SECTION 18.03. Section 8, Texas Asbestos Health Protection
132-13 Act (Article 4477-3a, Vernon's Texas Civil Statutes), is amended by
132-14 amending Subsection (a) and adding Subsection (g) to read as
132-15 follows:
132-16 (a) After notice to the licensee and an opportunity for a
132-17 hearing, the department shall [may] reprimand the licensee or
132-18 modify, suspend, suspend on an emergency basis, or revoke a license
132-19 under this Act if an act or omission of the licensee meets the
132-20 criteria prescribed by the board under Subsection (c) of this
132-21 section.
132-22 (g) The department may place on probation a person whose
132-23 license is suspended. If a suspension is probated, the department
132-24 may require the person:
132-25 (1) to report regularly to the department on matters
132-26 that are the basis of the probation;
132-27 (2) to limit practice to the areas prescribed by the
133-1 board; or
133-2 (3) to continue or review professional education until
133-3 the person attains a degree of skill satisfactory to the board in
133-4 those areas that are the basis of the probation.
133-5 SECTION 18.04. Section 9, Texas Asbestos Health Protection
133-6 Act (Article 4477-3a, Vernon's Texas Civil Statutes), is amended by
133-7 amending Subsections (b) and (h) and adding Subsection (j) to read
133-8 as follows:
133-9 (b) An application for registration or renewal as an
133-10 asbestos worker must be made on a form provided by the department.
133-11 An application for registration [or reregistration] must be
133-12 accompanied by a nonrefundable fee set by the board in an amount
133-13 not to exceed $50.
133-14 (h) After notice to the registrant and an opportunity for a
133-15 hearing in accordance with Section 11 of this Act, the department
133-16 shall [may] reprimand any registered worker or suspend, suspend on
133-17 an emergency basis, [or] revoke, or refuse to renew any
133-18 registration if the worker:
133-19 (1) has fraudulently or deceptively assigned,
133-20 obtained, or attempted to assign or obtain a registration or
133-21 renewal; or
133-22 (2) fails to comply with federal, state, or local
133-23 asbestos law or rule or with any order issued by the board or
133-24 department.
133-25 (j) The department may place on probation a person whose
133-26 registration is suspended. If a suspension is probated, the
133-27 department may require the person:
134-1 (1) to report regularly to the department on matters
134-2 that are the basis of the probation;
134-3 (2) to limit practice to the areas prescribed by the
134-4 board; or
134-5 (3) to continue or review professional education until
134-6 the person attains a degree of skill satisfactory to the board in
134-7 those areas that are the basis of the probation.
134-8 SECTION 18.05. The Texas Asbestos Health Protection Act
134-9 (Article 4477-3a, Vernon's Texas Civil Statutes) is amended by
134-10 adding Section 10A to read as follows:
134-11 Sec. 10A. NOTIFICATION OF EXAMINATION RESULTS. (a) Not
134-12 later than the 30th day after the date a person takes a licensing
134-13 or registration examination under this Act, the department shall
134-14 notify the person of the results of the examination.
134-15 (b) If the examination is graded or reviewed by a testing
134-16 service:
134-17 (1) the department shall notify the person of the
134-18 results of the examination not later than the 14th day after the
134-19 date the department receives the results from the testing service;
134-20 and
134-21 (2) if notice of the examination results will be
134-22 delayed for longer than 90 days after the examination date, the
134-23 department shall notify the person of the reason for the delay
134-24 before the 90th day.
134-25 (c) The department may require a testing service to notify a
134-26 person of the results of the person's examination.
134-27 (d) If requested in writing by a person who fails a
135-1 licensing or registration examination administered under this Act,
135-2 the department shall furnish the person with an analysis of the
135-3 person's performance on the examination.
135-4 SECTION 18.06. The Texas Asbestos Health Protection Act
135-5 (Article 4477-3a, Vernon's Texas Civil Statutes) is amended by
135-6 adding Section 12A to read as follows:
135-7 Sec. 12A. RULES REGARDING ADVERTISING OR COMPETITIVE
135-8 BIDDING. (a) The board may not adopt rules restricting
135-9 advertising or competitive bidding by a license or registration
135-10 holder except to prohibit false, misleading, or deceptive
135-11 practices.
135-12 (b) In its rules to prohibit false, misleading, or deceptive
135-13 practices, the board may not include a rule that:
135-14 (1) restricts the use of any medium for advertising;
135-15 (2) restricts the use of a license or registration
135-16 holder's personal appearance or voice in an advertisement;
135-17 (3) relates to the size or duration of an
135-18 advertisement by the license or registration holder; or
135-19 (4) restricts the license or registration holder's
135-20 advertisement under a trade name.
135-21 ARTICLE 19. STANDARD SUNSET REVIEW PROVISIONS APPLICABLE TO THE
135-22 REGULATION OF CERTAIN LEAD-BASED PAINT ACTIVITIES
135-23 SECTION 19.01. Chapter 332, Acts of the 74th Legislature,
135-24 Regular Session, 1995 (Article 9029, Vernon's Texas Civil
135-25 Statutes), is amended by adding Sections 3A and 3B to read as
135-26 follows:
135-27 Sec. 3A. NOTIFICATION OF EXAMINATION RESULTS. (a) Not
136-1 later than the 30th day after the date a person takes any
136-2 certification or accreditation examination under this Act, the
136-3 department shall notify the person of the results of the
136-4 examination.
136-5 (b) If an examination is graded or reviewed by a testing
136-6 service:
136-7 (1) the department shall notify the person of the
136-8 results of the examination not later than the 14th day after the
136-9 date the department receives the results from the testing service;
136-10 and
136-11 (2) if notice of the examination results will be
136-12 delayed for longer than 90 days after the examination date, the
136-13 department shall notify the person of the reason for the delay
136-14 before the 90th day.
136-15 (c) The department may require a testing service to notify a
136-16 person of the results of the person's examination.
136-17 (d) If requested in writing by a person who fails a
136-18 certification or accreditation examination administered under this
136-19 Act, the department shall furnish the person with an analysis of
136-20 the person's performance on the examination.
136-21 Sec. 3B. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING.
136-22 (a) The Texas Board of Health may not adopt rules restricting
136-23 advertising or competitive bidding by a certified or accredited
136-24 person except to prohibit false, misleading, or deceptive
136-25 practices.
136-26 (b) In its rules to prohibit false, misleading, or deceptive
136-27 practices, the board may not include a rule that:
137-1 (1) restricts the use of any medium for advertising;
137-2 (2) restricts the use of a certified or accredited
137-3 person's personal appearance or voice in an advertisement;
137-4 (3) relates to the size or duration of an
137-5 advertisement by the certified or accredited person; or
137-6 (4) restricts the certified or accredited person's
137-7 advertisement under a trade name.
137-8 SECTION 19.02. Chapter 332, Acts of the 74th Legislature,
137-9 Regular Session, 1995 (Article 9029, Vernon's Texas Civil
137-10 Statutes), is amended by adding Sections 6A, 6B, and 6C to read as
137-11 follows:
137-12 Sec. 6A. EXPIRATION DATES OF CERTIFICATION OR ACCREDITATION.
137-13 The Texas Board of Health by rule may adopt a system under which
137-14 certifications or accreditations expire on various dates during the
137-15 year. For the year in which the expiration date is changed, the
137-16 department shall prorate certification or accreditation fees on a
137-17 monthly basis so that each certified or accredited person pays only
137-18 that portion of the certification or accreditation fee that is
137-19 allocable to the number of months during which the certification or
137-20 accreditation is valid. On renewal of the certification or
137-21 accreditation on the new expiration date, the total certification
137-22 or accreditation renewal fee is payable.
137-23 Sec. 6B. RENEWAL OF CERTIFICATION OR ACCREDITATION. (a) A
137-24 person who is otherwise eligible to renew a certification or
137-25 accreditation may renew an unexpired certification or accreditation
137-26 by paying the required renewal fee to the department before the
137-27 expiration date of the certification or accreditation. A person
138-1 whose certification or accreditation has expired may not engage in
138-2 activities that require certification or accreditation until the
138-3 certification or accreditation has been renewed.
138-4 (b) A person whose certification or accreditation has been
138-5 expired for 90 days or less may renew the certification or
138-6 accreditation by paying to the department a renewal fee that is
138-7 equal to 1-1/2 times the normally required renewal fee.
138-8 (c) A person whose certification or accreditation has been
138-9 expired for more than 90 days but less than one year may renew the
138-10 certification or accreditation by paying to the department a
138-11 renewal fee that is equal to two times the normally required
138-12 renewal fee.
138-13 (d) A person whose certification or accreditation has been
138-14 expired for one year or more may not renew the certification or
138-15 accreditation. The person may become recertified or reaccredited by
138-16 complying with the requirements and procedures, including any
138-17 examination requirements, for an original certification or
138-18 accreditation.
138-19 (e) A person who was certified or accredited in this state,
138-20 moved to another state, and is currently certified or accredited
138-21 and has been in practice in the other state for the two years
138-22 preceding the date of application may become recertified or
138-23 reaccredited without reexamination. The person must pay to the
138-24 department a fee that is equal to two times the normally required
138-25 renewal fee for certification or accreditation.
138-26 (f) Not later than the 30th day before the date a person's
138-27 certification or accreditation is scheduled to expire, the
139-1 department shall send written notice of the impending expiration to
139-2 the person at the person's last known address according to the
139-3 records of the department.
139-4 Sec. 6C. DISCIPLINARY ACTIONS. (a) The department shall
139-5 revoke, suspend, or refuse to renew a certification or
139-6 accreditation or shall reprimand a certified or accredited person
139-7 for a violation of this Act or a rule of the board.
139-8 (b) The board may place on probation a person whose
139-9 certification or accreditation is suspended. If a suspension is
139-10 probated, the board may require the person:
139-11 (1) to report regularly to the department on matters
139-12 that are the basis of the probation;
139-13 (2) to limit practice to the areas prescribed by the
139-14 board; or
139-15 (3) to continue or review professional education until
139-16 the person attains a degree of skill satisfactory to the board in
139-17 those areas that are the basis of the probation.
139-18 ARTICLE 20. EFFECTIVE DATE; EMERGENCY
139-19 SECTION 20.01. This Act takes effect September 1, 1999.
139-20 SECTION 20.02. The importance of this legislation and the
139-21 crowded condition of the calendars in both houses create an
139-22 emergency and an imperative public necessity that the
139-23 constitutional rule requiring bills to be read on three several
139-24 days in each house be suspended, and this rule is hereby suspended.