SRC-AMY H.B. 329 78(R)   BILL ANALYSIS


Senate Research Center   H.B. 329
By: Naishtat (Fraser)
Business & Commerce
5/18/2003
Engrossed


DIGEST AND PURPOSE 

Currently, mold assessors and mold remediators are not regulated under
state or federal law. This lack of regulation may have contributed to the
incidence of costly mold assessment and remediation expenses, as well as
hazardous and inefficient extraction of mold by untrained and unlicensed
mold remediators.  This, in turn, may have resulted in significant
increases in homeowners' insurance premiums. H.B. 329 requires mold
assessors and remediators to be licensed through a program developed and
implemented by the Texas Department of Health (TDH), requires TDH to
conduct inspections and investigate complaints, provides for a statewide
education and outreach program on the health implications of mold growth
in indoor environments, and prohibits underwriting decisions by
residential property insurers based on a previous mold damage claim if the
property was remediated as evidenced by a certificate of mold remediation
or independent inspection. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Board of Health in
SECTION 1 (Sections 1958.053, 1958.054, 1958.056, 1958.101, 1958.103,
1958.105, 1958.106, 1958.153, 1958.154, and 1958.155, Occupations Code) of
this bill. 

Rulemaking authority is expressly granted to the commissioner of insurance
in SECTION 2 (Article 21.21-11, Section 4, Insurance Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subtitle B, Title 12, Occupations Code, by adding
Chapter 1958, as follows: 

CHAPTER 1958.  MOLD ASSESSORS AND REMEDIATORS
SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 1958.001.  DEFINITIONS.  Defines "board," "commissioner,"
"department," "license," "mold," "mold assessment," and "mold
remediation." 

Sec. 1958.002.  SCOPE OF AUTHORITY.  (a)  Provides that this chapter
applies only to the regulation of mold-related activities that affect
indoor air quality. 

(b)  Sets forth the activities to which this chapter does not apply. 

[Reserves Sections 1958.003-1958.050 for expansion.]

SUBCHAPTER B.  POWERS AND DUTIES

Sec. 1958.051.  GENERAL POWERS AND DUTIES OF DEPARTMENT; SCOPE OF
AUTHORITY.  Requires the Texas Department of Health (TDH) to administer
this chapter to protect the public from the adverse health effects of
mold. 

Sec. 1958.052.  EDUCATION PROGRAM.  (a)  Requires TDH to conduct a
statewide education and outreach program regarding the health implications
of mold growth in  indoor environments.  Requires the program to include
methods to recognize, prevent, and mitigate mold occurrence. 

(b)  Authorizes TDH to contract with governmental entities or other
persons to provide the program. 

Sec. 1958.053.  GENERAL RULEMAKING AUTHORITY.  Requires the Texas Board of
Health (board) to adopt substantive and procedural rules as necessary or
desirable for the board, TDH, and commissioner of public health
(commissioner) to discharge their powers and duties under this chapter. 

Sec. 1958.054.  RULES REGARDING PERFORMANCE STANDARDS AND WORK PRACTICES.
Requires the board, by rule, to establish minimum performance standards
and work practices for conducting a mold assessment or mold remediation in
this state. 

Sec. 1958.055.  FEES.  Requires the board to establish reasonable and
necessary fees to administer this chapter, including fees for licenses and
examinations.  Requires the board to set the fees in an amount sufficient
to recover the costs of administering this chapter. 

Sec. 1958.056.  INSPECTIONS.  (a)  Requires TDH to conduct inspections as
necessary to ensure compliance with this chapter. 

(b)  Requires the board to adopt rules regarding compliance investigations.

Sec. 1958.057.  COMPLAINTS.  Requires TDH to investigate any complaint
regarding mold-related activities. 

[Reserves Sections 1958.058-1958.100 for expansion.]

SUBCHAPTER C.  LICENSE REQUIREMENTS

Sec. 1958.101.  LICENSE REQUIRED; RULES.  (a)  Prohibits a person from
engaging in mold assessment unless the person holds a mold assessment
license or from engaging in mold remediation unless the person holds a
mold remediation license. 

(b)  Requires the board to adopt rules regarding the scope of mold-related
work for which a license is required, including the supervision of
employees or other persons by license holders, and renewal requirements
for a license issued under this chapter. 

Sec. 1958.102.  EXEMPTIONS.  (a)  Provides that an owner or tenant, or a
managing agent or employee of an owner or tenant, is not required to be
licensed under this chapter to perform mold assessment or mold remediation
on property owned or leased by the owner or tenant.  Sets forth the
circumstances under which this exemption does not apply. 

(b)  Provides that an employee of a license holder is not required to be
licensed under this chapter to perform mold assessment or mold remediation
while supervised by the license holder, as provided by rules adopted under
Section 1958.101. 

(c)  Provides that a person is not required to be licensed under this
chapter to perform mold remediation in an area in which the mold
contamination affects a total surface area for the project of less than 25
contiguous square feet. 

(d)  Provides that a person is not required to be licensed under this
chapter to perform mold assessment or mold remediation in a one-family or
two-family dwelling that the person constructed or improved, if the person
performs the mold assessment or mold remediation at the same time the
person performs the construction or improvement or at the same time the
person performs repair work  on the construction or improvement.  Sets
forth the circumstances under which this exemption does not apply. 

(e)  Provides that an owner, or a managing agent or employee of an owner,
is not required to be licensed under this chapter to perform mold
assessment or mold remediation on a residential property owned by that
person with fewer than 25 dwelling units.  Provides that this exemption
does not apply if the managing agent or employee engages in the business
of performing mold assessment or mold remediation for the public. 

Sec. 1958.103.  RULES REGARDING LICENSE APPLICATION.  Requires the board
to adopt rules regarding a license application.  Requires the board to
adopt rules that establish minimum requirements for a license, including
the type, term, qualifications, renewal, and liability insurance
requirements for the license. 

Sec. 1958.104.  EXAMINATION.  Authorizes TDH to require that an applicant
for a license pass a competency examination to qualify for the license. 

Sec. 1958.105.  CONTINUING EDUCATION.  (a)  Requires the board to adopt
rules regarding continuing education required under this chapter. 

(b)  Authorizes the rules to include requirements regarding continuing
education providers, including rules establishing accreditation by TDH,
curriculum and training requirements, and qualifications. 

Sec. 1958.106.  RECIPROCITY.  Authorizes the board to adopt rules that
facilitate reciprocity and communication with other states that have a
similar licensing program. 

[Reserves Sections 1958.107-1958.150 for expansion.]

SUBCHAPTER D.  PRACTICE BY LICENSE HOLDER

Sec. 1958.151.  SCOPE OF WORK ANALYSIS.  (a)  Requires a license holder
who intends to perform mold assessment on a mold remediation project to
prepare a work analysis for the project.  Requires the license holder to
provide the analysis to the client before the mold remediation begins.  

(b)  Sets forth the required specifications of the work.

Sec. 1958.152.  REMEDIATION WORK PLAN.  (a)  Requires a license holder who
intends to perform mold remediation to prepare a work plan providing
instructions for the remediation efforts to be performed for the mold
remediation project.  Requires the license holder to provide the work plan
to the client before the mold remediation begins. 

(b)  Requires the license holder to maintain a copy of the work plan at
the job site where the remediation is being performed. 

Sec. 1958.153.  NOTICE; CERTIFICATE OF MOLD REMEDIATION.  (a)  Requires
the license holder, except as provided by Subsection (c), not later than
the fifth day before the date on which a license holder starts mold
remediation at a property, to notify TDH in writing about the project. 

(b)  Requires the license holder, not later than the 10th day after the
date on which a license holder completes mold remediation at a property,
to provide a certificate of mold remediation to the property owner and
TDH.  Requires the certificate to include a statement by a mold assessment
license holder that, based on visual, procedural, and analytical
evaluation, the mold contamination identified for the project has been
remediated as outlined in the mold management plan or remediation
protocol.  Requires  the mold assessment license holder, if the mold
assessment license holder determines that the underlying cause of the mold
has been remediated so that it is reasonably certain that the mold will
not return from that remediated cause, to indicate on the certificate that
the underlying cause of the mold has been remediated. 

(c) Authorizes notice to TDH under Subsection (a), in an emergency, to be
made verbally but requires it to be made not later than the next business
day after the license holder identifies the emergency.  Provides that for
purposes of this subsection, an emergency exists if a delay in mold
remediation services in response to a water damage occurrence would
increase mold contamination. 

(d)  Requires the board to adopt rules to implement this section,
including rules describing the information that must be provided in the
notice and certificate of mold remediation and authorizing verbal
notification to TDH in an emergency. 

(e)  Prohibits the entity that owns the building, the entity that occupies
the building, and any persons authorized by such entities to make a
determination regarding whether the building will be reoccupied, in the
event that a school or other public building has been issued a certificate
of mold remediation under this subchapter, from being liable in a civil
lawsuit for damages relating to the decision to allow occupancy of the
building following mold remediation. 

Sec. 1958.154.  CONFLICT OF INTEREST; DISCLOSURE REQUIRED.  (a)  Prohibits
a license holder from performing both mold assessment and mold remediation
on the same project. 

(b)  Prohibits a person from owning an interest in both the entity that
performs assessment services and an entity that performs remediation
services on the same project. 

(c)  Requires a license holder who is not an individual to disclose to TDH
the name, address, and occupation of each person that has an ownership
interest in the license holder.  Requires the license holder to report any
changes in ownership to TDH.  Requires the board to adopt rules to
implement this section, including rules regarding the form of the
disclosure and the time required to make disclosures or to report a change
in ownership. 

Sec. 1958.155.  CODE OF ETHICS.  Requires the board by rule to adopt a
code of ethics for license holders that promotes the education of mold
assessors and mold remediators concerning the ethical, legal, and business
principles that should govern their conduct. 

Sec. 1958.156.  MOLD REMEDIATOR LICENSING AND RESPONSIBILITIES. Requires a
mold remediator to maintain a file regarding each mold remediation for a
minimum of three years from the date of completion of the mold remediation
and make such file available for inspection by the department or any law
enforcement entity. Requires the file to contain such material as TDH may
determine, and to also include photographic evidence of the scene of the
mold remediation taken before and after the remediation, the written
contract between the mold remediator or any other party regarding the mold
remediation, and all invoices issued regarding the mold remediation.
Requires the mold remediation company or mold remediation contractor to
provide the owner of the building with copies of all photographic evidence
required by this section within one week of the completion of the mold
remediation. 

[Reserves Sections 1958.157-1958.200 for expansion.]

SUBCHAPTER E.  DISCIPLINARY PROCEDURES

Sec. 1958.201.  DISCIPLINARY ACTION.  Requires TDH, if a license holder
violates this chapter or an order or rule adopted under this chapter,
after providing the person with notice and  an opportunity for a hearing,
to take one or more of certain actions. 

[Reserves Sections 1958.202-1958.250 for expansion.]

SUBCHAPTER F.  ADMINISTRATIVE PENALTY

Sec. 1958.251.  IMPOSITION OF ADMINISTRATIVE PENALTY.  Authorizes the
commissioner to impose an administrative penalty on a person who violates
this chapter or a rule adopted or order issued under this chapter. 

Sec. 1958.252.  AMOUNT OF PENALTY.  (a) Prohibits the amount of an
administrative penalty from exceeding $5,000 for each violation.
Authorizes each day a violation continues under Section 1958.101 or
1958.154 to be considered a separate violation for purposes of imposing a
penalty. 

(b) Sets forth the criteria the commissioner is required to consider in
determining the amount of the penalty. 

Sec. 1958.253.  EXCEPTION TO ADMINISTRATIVE PENALTY.  (a)  Authorizes the
commissioner to choose not to impose an administrative penalty under this
subchapter if, not later than the 10th day after the date of written
notice of the violation under Section 1958.254, the person provides
conclusive evidence that the circumstances giving rise to the violation
have been corrected and all actual damages are paid. 

(b) Provides that this section does not apply to a violation alleged under
Section 1958.101 or 1958.154. 

Sec. 1958.254.  NOTICE; OPPORTUNITY FOR HEARING; ORDER.  (a) Authorizes
the commissioner to impose an administrative penalty under this subchapter
only after the person charged with a violation is given a written notice
and the opportunity for a hearing. 

(b)  Requires the written notice to state the facts that constitute the
alleged violation and the law or rule on which the violation is based. 

(c)  Requires the commissioner, if a hearing is held, to make findings of
fact and issue a written decision as to the occurrence of the violation
and the amount of any penalty that is warranted. 

(d)  Authorizes the commissioner, if the person charged with a violation
fails to exercise the opportunity for a hearing, after determining that a
violation occurred and the amount of the penalty that is warranted, to
impose a penalty and requires the commissioner to issue an order requiring
the person to pay any penalty imposed. 

(e)  Requires the commissioner, not later than the 30th day after the date
the commissioner issues an order after determining that a violation
occurred, to inform the person charged with the violation of the amount of
any penalty imposed. 

(f)  Authorizes the commissioner to consolidate a hearing under this
section with another proceeding. 

Sec. 1958.255.  OPTIONS FOLLOWING DECISION:  PAY OR APPEAL.  (a)  Requires
the person, not later than the 30th day after the date the commissioner's
decision or order becomes final as provided by Section 2001.144
(Decisions; When Final), Government Code, to pay the administrative
penalty or file a petition for judicial review contesting the fact of the
violation, the amount of the penalty, or both. 

 (b)  Authorizes a person who acts under Subsection (a)(2) within the
30-day period to stay enforcement of the penalty by paying the penalty to
the commissioner for placement in an escrow account or by giving the
commissioner a bond in a form approved by the commissioner that is for the
amount of the penalty and is effective until judicial review of the
commissioner's decision or order is final. 

Sec. 1958.256.  COLLECTION OF PENALTY.  Authorizes the attorney general,
at the request of the commissioner, to bring a civil action to recover an
administrative penalty imposed under this subchapter. 

Sec. 1958.257.  JUDICIAL REVIEW.  Provides that judicial review of a
decision or order of the commissioner imposing a penalty under this
subchapter is instituted by filing a petition with a district court in
Travis County and is under the substantial evidence rule as provided by
Subchapter G (Contested Cases: Judicial Review), Chapter 2001
(Administrative Procedure), Government Code. 

Sec. 1958.258.  REMITTANCE OF PENALTY AND INTEREST OR RELEASE OF BOND.
Requires the commissioner, if after judicial review the administrative
penalty is reduced or is not upheld by the court, to remit the appropriate
amount, plus accrued interest, to the person not later than the 30th day
after the date of the determination, if the person paid the penalty, or
execute a release of the bond, if the person gave a bond. 

[Reserves Sections 1958.259-1958.300 for expansion.]

SUBCHAPTER G.  OTHER PENALTIES; ENFORCEMENT PROVISIONS

Sec. 1958.301.  CIVIL PENALTY.  (a)  Provides that a person who violates
this chapter or a rule adopted under this chapter is liable for a civil
penalty in an amount not to exceed $2,000 for the first violation or
$10,000 for a second or later violation. 

(b) Authorizes the commissioner to request the attorney general or the
district, county, or city attorney having jurisdiction to bring an action
to collect a civil penalty under this section. 

Sec. 1958.302.  INJUNCTIVE RELIEF.  Authorizes the commissioner to request
the attorney general or the district, county, or city attorney having
jurisdiction to bring an action in a district court of Travis County for a
restraining order, injunction, or other relief the court determines is
appropriate if it appears to TDH that a person is violating or has
violated this chapter or a rule adopted under this chapter. 

SECTION 2.  Amends Subchapter B, Chapter 21, Insurance Code, adding
Article 21.21-11, as follows: 

Art. 21.21-11.  PROHIBITION OF CERTAIN UNDERWRITING DECISIONS BASED ON
PREVIOUS MOLD CLAIM 

Sec. 1.  DEFINITIONS.  Defines "insurer," "mold," "mold remediation," and
"residential property insurance." 

Sec. 2.  APPLICABILITY.  Provides that this article applies to each
insurer that writes residential property insurance in this state. 

Sec. 3.  PROHIBITION.  Prohibits an insurer from making an underwriting
decision regarding a residential property insurance policy based on
previous mold damage under certain circumstances. 

Sec. 4.  RULES.  Requires the commissioner of insurance (commissioner) to
adopt rules as necessary to implement this article. 
 
Sec. 5.  PENALTY.  Provides that an insurer who violates this article
commits an unfair practice in violation of Article 21.21 (Unfair
Competition and Unfair Practices), Insurance Code. 

SECTION 3.  Requires the Texas Board of Health to adopt the rules required
by Chapter 1958, Occupations Code, as added by this Act, not later than
April 1, 2004. 

SECTION 4.  (a)  Effective date:  September 1, 2003, except as provided by
Subsection (b) of this section.  

(b)  Provides that Section 1958.101(a), Occupations Code, and Subchapters
D, E, F, and G, Chapter 1958, Occupations Code, as added by this Act, take
effect July 1, 2004.