SRC-MLC, MSY S.B. 129 78(R) BILL ANALYSIS
Senate Research Center S.B. 129
By: Fraser
Business and Commerce
2/17/2003
As Filed
DIGEST AND PURPOSE
Currently, persons and companies who provide services related to mold
assessment and remediation are not regulated under state or federal law.
The lack of mold assessment and remediation regulation has resulted in
costly mold assessment and remediation expenses as well as hazardous and
inefficient extraction of mold by ill-trained and unlicensed mold
remediators. The expense of mold assessment and remediation services has
resulted in an increase in the cost of homeowners' insurance premiums. As
proposed, S.B. 129 would establish a licensing and regulatory framework
for persons and companies who provide certain commercial services related
to mold assessment and remediation. S.B. 129 sets forth requirements for
mold assessment and remediation licensure and accordingly establishes
eight types of licenses relating to mold assessment and remediation to be
issued by the Texas Department of Health (TDH). S.B. 129 authorizes TDH
to engage in certain disciplinary actions if a licensee violates
conditions of that license. S.B. 129 establishes other standards for mold
assessment and remediation services, and sets forth requirements for mold
assessment and remediation training. S.B. 129 further authorizes TDH to
conduct a public outreach program to educate Texans on the importance and
methods of improving indoor air quality.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the Texas Board of Health in
SECTION 1 (Sections 1958.051, 1958.052, 1958.053, 1958.105, 1958.255,
1958.256, 1958.258, 1958.302, 1958.303, and 1958.351, Chapter 1958, Title
12B, Occupations Code) of this bill.
Rulemaking authority is expressly granted to the Texas Department of
Health in SECTION 1 (1958.051 and 1958.202, Chapter 1958, Title 12B,
Occupations Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 12B, Occupations Code, by adding Chapter 1958, as
follows:
CHAPTER 1958. MOLD REMEDIATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1958.001. SHORT TITLE. Provides that the Texas Mold Remediation
Licensing Act is this chapter's short title.
Sec. 1958.002. SCOPE OF CHAPTER. Makes this chapter applicable to any
mold-related activity performed by a third party for compensation and any
mold-related activity performed in a facility owned or leased by the
state, a county, or a city. Requires that such activity be performed by
persons licensed under this chapter.
Sec. 1958.003. DEFINITIONS. Defines "board," "certified industrial
hygienist," "commissioner," "department," "indoor air quality factors,"
"licensee," "mold," "mold analysis company," "mold assessment," "mold
assessment company," "mold assessment consultant," "mold assessment
technician," "mold remediation," "mold remediation company," "mold
remediation contractor," "mold remediation supervisor," and "mold-related
activities."
SUBCHAPTER B. POWERS AND DUTIES OF THE BOARD AND THE DEPARTMENT
Sec. 1958.051. ADOPTION OF RULES; AUTHORITY TO CONTRACT. (a) Requires
the Texas Board of Health (board) to adopt, by rule, procedural and
substantive rules as needed for the board, the Texas Department of Health
(TDH), and commissioner of public health (commissioner) to carry out their
powers and duties under this chapter.
(b) Requires the board, by rule, to create procedures to be followed when
TDH determines that a site poses a danger to its occupants, workers, or
the general public.
(c) Authorizes TDH to adopt rules effecting reciprocity agreements with
other states.
(d) Authorizes TDH to contract with qualified persons in order to perform
the inspections required for the enforcement of this chapter.
Sec. 1958.052. STANDARDS FOR MOLD-RELATED ACTIVITIES. Requires the
board to adopt, by rule, minimum standards for conducting mold-related
activities.
Sec. 1958.053. MOLD REMEDIATION PROCEDURES. Requires the board to adopt
rules to ensure proper mold remediation procedures, and specifies that the
board must include certain specific rules and procedures.
Sec. 1958.054. PUBLIC EDUCATION PROGRAM. Requires TDH to conduct a
statewide program for educating the public about the importance of
improving indoor air quality and how to do so. Sets forth the possible
methods of carrying out the public education program.
SUBCHAPTER C. LICENSING; TEMPORARY CERTIFICATION
Sec. 1958.101. LICENSE REQUIRED; EXEMPTION. Prohibits anyone not
holding a license issued by TDH under Section 1958.103 from engaging in
mold assessment, remediation, or analysis. Requires a mold training
provider to acquire a license under Section 1958.103. Exempts licensed
certified industrial hygienists from the requirements of this section.
Sec. 1958.102. TRAINING REQUIRED FOR LICENSE. Prohibits anyone from
becoming licensed under Section 1958.101 unless that person has completed
all the training required by board rule.
Sec. 1958.103. ISSUANCE, TYPES OF LICENSES. Requires persons meeting
the requirements under this chapter and any other requirements established
by the board to be licensed by TDH under the appropriate type of license
type, and defines the various types of licenses.
Sec. 1958.104. APPLICATION FOR LICENSE. Requires an applicant for a
license under Section 1958.103 to apply to TDH on the form it prescribes.
Requires the form to be signed by the applicant, include certain
information, and be notarized. Requires the applicant to pay a
nonrefundable application fee set by the board. Authorizes TDH, during
the application process or before a granted license expires, to require
additional information and assurances from the applicant, and to make
inspections of evidence considered necessary to determine whether the
license should be granted, denied, delayed, modified, suspended, or
revoked.
Sec. 1958.105. LICENSE FEES; OTHER FEES. Requires the board to adopt,
by rule, fees set forth in this section and any other reasonable fees
necessary for the implementation of this chapter. Requires TDH to collect
the fees and deposit them with the comptroller in an account that may be
used only by TDH for the implementation of this chapter. Establishes
maximum fees for the various types of licenses.
Sec. 1958.106. QUALIFICATIONS FOR LICENSE. Establishes the requirements
for qualifying as a mold assessment consultant, mold assessment
technician, mold remediation contractor, mold remediation supervisor, or
mold training provider. Establishes the requirements for qualifying as a
mold assessment company, mold remediation company, or mold analysis
company.
Sec. 1958.107. CERTIFICATES OF INCORPORATION AND INSURANCE. Requires an
individual applying for a license under this chapter to provide certain
documentation which demonstrates the right to conduct business in the
state, as well as proof of certain kinds of insurance. Requires a
licensee to maintain all applicable insurance required under this section,
including commercial general liability pollution insurance with certain
minimum coverages for a mold remediation company or contractor as well as
professional liability insurance coverage for errors and omissions by a
mold training or mold assessment service provider. Provides that failure
to maintain the required insurance will result in immediate forfeiture of
the license.
Sec. 1958.108. LICENSES SUBJECT TO RULES AND ORDERS. Provides that the
terms and conditions of licenses are subject to rules and orders of the
board in accordance with this chapter.
Sec. 1958.109. LICENSE NOT ASSIGNABLE. Provides that a license issued
under this chapter is not transferrable to another person.
Sec. 1958.110. LICENSE REPLACEMENT. Authorizes a licensee to request a
replacement license certificate by submitting an application as prescribed
by the board.
Sec. 1958.111. PROVISIONAL LICENSE. (a) Authorizes TDH to grant a
provisional license to an applicant who is licensed in another
jurisdiction, on the condition that the applicant meets certain
requirements.
(b) Authorizes TDH to waive the requirement of Subsection (a)(3), which
requires a person holding a provisional license to be sponsored by, and
practice with a person licensed by TDH, if it determines that compliance
would create a hardship to the applicant.
(c) Provides that a provisional license is valid until TDH approves or
denies the provisional license holder's application. Requires TDH to
issue a license to a provisional license holder who is eligible to be
licensed under Section 1958.106 and meets any other licensing requirements
under this chapter.
(d) Requires TDH to approve or deny a provisional license holder's
application within 180 from the date the provisional license is issued.
Authorizes TDH to extend the 180day period if it has not received the
results of an examination before the end of that period.
(e) Authorizes TDH to establish a fee for a provisional license in an
amount necessary for covering the cost of issuing the license.
Sec. 1958.112. REGISTRATION FOR TRAINEES. (a) Requires trainees for
mold assessment technician or mold remediation supervisor to register with
TDH for a temporary certificate. Requires applicants for the certificate
to apply to TDH on a form prescribed by the board and to pay a fee set by
the board.
(b) Provides that temporary certificates may be issued only for training
purposes, and that the holders of such certificates must train under the
direction and sponsorship of a person licensed for the applicable
mold-related activity.
(c) Requires the sponsor to attest, on a form prescribed by the board,
that the trainee is under the sponsor's employment and supervision, and
that both the sponsor and trainee are in compliance with the insurance and
other requirements under this chapter.
(d) Provides that a temporary certificate expires 180 days after issuance
and allows the certificate to be renewed once on application to TDH.
Prohibits a person from holding more than two consecutive temporary
certificates.
(e) Requires a person who holds a temporary certificate under this section
to comply with the insurance requirements under Section 1958.107 and the
requirements for licensing under Section 1958.106(1)-(5).
SUBCHAPTER D. LICENSE EXAMINATION
Sec. 1958.151. EXAMINATION REQUIREMENT. Prohibits a person from
receiving a license for a business or profession under Section 1958.101
unless the person passes an examination required for the license.
Requires the board to adopt or approve the examinations that the
applicants must pass. Authorizes the board to require or authorize the
use of standardized examinations for licensing under this chapter and to
set fees for the administration of such examinations.
Sec. 1958.152. NOTIFICATION OF EXAMINATION RESULTS. Requires TDH to
notify a person of the results of a licensing examination within 30 days
of the examination's administration. Requires TDH to notify the person of
the results of an examination within 14 days of its receipt of the results
of an examination that is graded or reviewed by a testing service.
Requires TDH to notify the examinee of the reason for the delay before the
90th day if the notice of the examination's results will be delayed for
more than 90 days after the exam date. Authorizes TDH to require a
testing service to notify a person of the results of the person's
examination under Subsection (b). Requires TDH to provide an analysis of
a person's performance on an exam if the person has failed the exam and
requests an analysis in writing.
SUBCHAPTER E. CONTINUING EDUCATION; LICENSE RENEWAL
Sec. 1958.201. CONTINUING EDUCATION REQUIREMENT. Requires a licensee to
complete 15 hours of continuing education courses every year, as
prescribed by board rule. Requires that those courses be offered and
provided by mold training providers licensed under this chapter. Requires
a licensee to submit proof of compliance with the continuing education
requirements along with the licensee's license renewal application.
Sec. 1958.202. LICENSE RENEWAL. (a) Provides that a license issued
under this chapter expires on the first year anniversary of its effective
date, unless renewed for a one-year term under Subsection (d).
(b) Authorizes TDH to adopt a system, by rule, under which licenses expire
on various dates during the year. Requires TDH to prorate fees for the
year the license expiration date is changed, but provides that the entire
license renewal fee is due on the new expiration date.
(c) Requires TDH to send the licensee a renewal notice containing certain
information at least one month before the license expires.
(d) Authorizes a license holder to renew the license for a one-year term
if certain requirements are met.
Sec. 1958.203. EXPIRED LICENSE. Prohibits a person whose license has
expired from engaging in any activity that requires a license until the
license is renewed. Sets forth requirements for renewing licenses that
have been expired for 90 days or less and for licenses that have been
expired for more than 90 days but less than one year; and sets forth
requirements for acquiring a new license if a person's license has been
expired for a year or more.
Sec. 1958.204. RENEWAL OF EXPIRED LICENSE BY NONRESIDENT LICENSEES.
Authorizes a nonresident person under certain conditions to renew an
expired license without examination if that person meets certain
requirements. Requires a nonresident person renewing without examination
to pay a renewal fee double the normally required amount.
SUBCHAPTER F. PROFESSIONAL DUTIES AND CONDUCT
Sec. 1958.251. DUTY TO ENSURE EMPLOYEE QUALIFICATIONS AND PROTECTION.
Requires a licensee engaged in any mold-related activity to ensure that
each employee licensee involved in the activity is familiar with certain
standards, has completed applicable courses, and is supplied with approved
equipment in good working order.
Sec. 1958.252. PROHIBITION ON MULTIPLE SERVICES THAT CREATE CONFLICT OF
INTEREST. Prohibits a licensee from performing more than one of the
following activities on the same project: mold assessment, mold
remediation, or mold or moldrelated analysis.
Sec. 1958.253. REQUIRED RECORDS. Requires a licensee to maintain
records, as prescribed by board rule, of each mold-related activity a
licensee performs, including job site records and permanent records at the
licensee's place of business. Requires a licensee to make the records
available to TDH on request. Requires a licensee to maintain the records
for a period prescribed by board rule.
Sec. 1958.254. SCOPE OF WORK ANALYSIS; WORK PLAN. (a) Requires the mold
remediation company or contractor to prepare a scope of work analysis for
each mold remediation project. Requires the company or contractor to
provide the scope of work document to the client or the client's
representative either in the bidding phase of the project or before the
mold remediation begins. Require the analysis to include specific
information.
(b) Requires the mold remediation company or contractor to develop a work
plan providing instructions for the remediation efforts to be performed,
and requires the company or contractor to provide the work plan to the
client before the remediation begins. Requires a copy of the plan to be
maintained at the job site for review by the mold remediation company,
contractor, and supervisor.
Sec. 1958.255. ADVERTISING OR COMPETITIVE BIDDING. Prohibits a licensee
from using false or misleading statements resulting in deceptive practices
in the licensee's advertising and competitive bidding. Authorizes the
board to enforce this section by rule, but prohibits the board from
adopting rules that restrict advertising in certain ways.
Sec. 1958.256. REQUIRED NOTIFICATION OF MOLD-RELATED ACTIVITIES.
Requires a person engaged in mold-related activities in a public building
to notify TDH in writing or electronically at least 10 days before
beginning work on the building. Provides that a person may give
notification orally in the case of an emergency. Requires the board to
impose a notification fee for notification under this section, and to set
the amount of the fee and procedures for payment by rule. Provides that a
licensee incurs the fee upon making a notification under this section.
Sec. 1958.257. STANDARD OPERATING PROCEDURES FOR MOLD REMEDIATION.
Requires a person engaged in mold remediation to develop and follow
standard operating procedures, including certain specific procedures and
any other standard operating procedures required by board rule.
Sec. 1958.258. CODE OF ETHICS. Requires the board to adopt, by rule, a
code of ethics for persons engaging in mold assessment and remediation
activities that facilitates the education of ethical, legal, and business
principles governing licensees' conduct. Provides that the code of ethics
may address practices common to all the professions licensed under this
article as well as ethical principals and practices specific to each.
SUBCHAPTER G. MOLD TRAINING
Sec. 1958.301. MOLD TRAINING PROVIDERS. Prohibits a mold training
provider from offering courses for licensure unless that provider is
licensed under Section 1958.103(8). Prohibits a mold training provider
from offering courses unless the course is approved by TDH as a
prerequisite to licensure and is offered according to a schedule approved
by TDH. Requires a mold training provider to provide TDH with records
documenting individuals who have attended such a course.
Sec. 1958.302. BOARD TO ADOPT RULES. Requires the board to adopt rules
reasonable and necessary to implement Sections 1958.301(b) and (c) and
Section 1958.303, as well as any other rules necessary to implement and
monitor the mold training program.
Sec. 1958.303. TRAINING REQUIREMENTS. Requires the board to adopt, by
rule, a minimum curriculum and other training requirements for mold
training providers licensed under Section 1958.103(8) to train other
persons required to be licensed under this chapter.
Sec. 1958.304. WITHDRAWAL OF COURSE APPROVAL. Authorizes the board to
withdraw approval of a course of instruction that it previously approved.
Provides that the withdrawal is effective immediately, and that a training
provider must cease to offer a course whose approval has been withdrawn
upon receiving notice from TDH.
SUBCHAPTER H. DISCIPLINARY ACTION
Sec. 1958.351. REPRIMAND; MODIFICATION, SUSPENSION, OR REVOCATION OF
LICENSE. (a) Requires TDH, after providing notice and the opportunity for
a hearing, to reprimand a licensee or modify, suspend, or revoke the
license of a licensee if the licensee commits an act or omission that
meets the criteria under Subsection (c).
(b) Provides that an emergency suspension by TDH is effective immediately,
and requires TDH to provide an opportunity for a hearing within 20 days of
such a suspension.
(c) Requires the board to adopt, by rule, criteria for departmental action
under this section, and establishes the minimum criteria that the board
must adopt for disciplinary action.
(d) Prohibits individuals or organizations whose licenses have been
revoked under this chapter from reapplying for a license for at least five
years from the date of revocation.
(e) Requires that the notice and hearing required by this section be
conducted in accordance with Section 1958.352.
(f) Authorizes TDH to place a person whose license is suspended on
probation. Authorizes TDH to require a person whose suspension is probated
to undertake certain actions while on probation.
Sec. 1958.352. NOTICE; ADMINISTRATIVE HEARING; APPEAL. Provides that
the notice and hearing provisions under Section 1958.351(e) and appeals
for judicial review of decisions under Section 1958.355 must be conducted
in accordance with the board's rules for contested hearings and with the
applicable provisions of Chapter 2001 (Administrative Procedure),
Government Code.
Sec. 1958.353. COMPLIANCE WITH STANDARDS NOT A DEFENSE. Provides that
compliance with any minimum standards adopted by the board does not
constitute a defense in a civil action for damages arising from work
performed in the course of mold-related activities.
Sec. 1958.354. CIVIL PENALTY; INJUNCTION. (a) Authorizes the
commissioner to request certain attorneys to institute certain civil suits
if it appears that a person has violated, is violating, or has threatened
to violate provisions of this chapter or rules adopted under this chapter.
(b) Provides that the penalty may not exceed $10,000 per day for each
violation, and that each day a violation occurs or continues to occur
constitutes a separate violation for penalty purposes.
(c) Authorizes the commissioner to request certain civil suits against an
owner of a public building who contracts or otherwise permits an
unlicensed person to perform activities in that building that require a
license under this chapter.
(d) Requires the court to consider certain factors when determining the
amount of a civil penalty.
(e) Requires that any civil penalty recovered in a suit instituted by the
attorney general under this chapter be deposited with the comptroller in
the general revenue fund, and requires that such a penalty recovered in a
suit instituted by a local government be paid to that government.
Sec. 1958.355. ADMINISTRATIVE PENALTY. (a) Authorizes the commissioner
to assess an administrative penalty, as provided by this section, against
a person who violates this chapter or a rule adopted or order issued under
this chapter.
(b) Provides that the penalty may not exceed $10,000 per violation, and
that each day a violation continues may be considered a separate
violation.
(c) Requires the commissioner to consider certain factors in determining
the amount of an administrative penalty.
(d) Provides that the person charged with the violation must be given the
opportunity for a hearing before the penalty may be assessed.
(e) Requires the commissioner to make findings of fact and issue a written
decision in the event of a hearing.
(f) Authorizes the commissioner to consolidate the hearings with other
proceedings.
(g) Authorizes the commissioner, if the person charged with the violation
fails to exercise the opportunity for a hearing, to assess a penalty after
having determined that a violation occurred and having decided upon the
amount of the penalty.
(h) Requires the commissioner, after making the determinations under
Subsection (g), to issue an order requiring the penalty to be paid.
(i) Requires the commissioner to inform the person charged with the
violation of the penalty's amount within 30 days of issuing an order
finding that a violation has occurred.
(j) Requires the person charged with the violation to pay the penalty in
full or, if seeking judicial review, to place the amount in escrow or a
bond with the commissioner within 30 days after the commissioner's final
decision.
(k) Requires the commissioner to remit to the person, by the 30th date
after the date of a determination by judicial review that a violation did
not occur or that the amount of the penalty should be reduced, the
appropriate amount with interest accrued. Establishes the guidelines for
the rate and period of interest.
(l) Provides that failure to forward the amount of the penalty to the
commissioner as required under Subsection (j) results in a waiver of
rights to contest the determination of the violation or the amount of the
penalty.
(m) Establishes the procedure for instituting judicial review under this
Subchapter.
(n) Authorizes the attorney general, at the request of the commissioner,
to recover administrative penalties owed under this section by civil
action.
(o) Requires funds collected under this section to be deposited into the
general revenue fund.
Sec. 1958.356. CRIMINAL PENALTY. Establishes the conditions under which
a person required to be licensed under this chapter may commit a criminal
offense. Provides that an offense under this chapter is a misdemeanor and
specifies the maximum penalties for first and second offenses.
SECTION 2. Requires the Texas Board of Health to adopt rules implementing
Chapter 1958, Occupations Code, as added by this Act, by January 1, 2004.
SECTION 3. Effective date: June 1, 2003, or September 1, 2003.