79R7485 JMM-D

By:  Uresti                                                       H.B. No. 3232


A BILL TO BE ENTITLED
AN ACT
relating to the establishment of the Texas Department of Health Professions Licensing and the transfer of the regulation of certain licensed health professions to that department; providing a civil penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle A, Title 3, Occupations Code, is amended by adding Chapter 112 to read as follows:
CHAPTER 112. TEXAS DEPARTMENT OF HEALTH PROFESSIONS LICENSING
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 112.001. DEFINITIONS. In this chapter: (1) "Board" means the Texas Board of Health Professions Licensing. (2) "Department" means the Texas Department of Health Professions Licensing. (3) "License" means a license, certificate, registration, title, or permit issued by the department. (4) "License holder" means a person who holds a license issued by the department. (5) "Respondent" means a person, regardless of whether the person is a license holder, who is charged with violating a law establishing a regulatory program administered by the department or a rule adopted or order issued by the board or executive director. (6) "Sanction" means an action by the executive director against a license holder or another person, including the denial, suspension, or revocation of a license, the reprimand of a license holder, or the placement of a license holder on probation. Sec. 112.002. APPLICATION OF SUNSET ACT. (a) The Texas Board of Health Professions Licensing and the Texas Department of Health Professions Licensing are subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board and the department are abolished and this chapter expires September 1, 2017. (b) Each law governing a profession regulated by the department is subject to Chapter 325, Government Code (Texas Sunset Act). Unless this chapter is continued in existence as provided by that chapter, that law expires September 1, 2017. Sec. 112.003. APPLICABILITY. This chapter applies to each regulatory program administered by the department, including any program under which a license is issued by the department.
[Sections 112.004-112.050 reserved for expansion]
SUBCHAPTER B. DEPARTMENT AND BOARD
Sec. 112.051. TEXAS DEPARTMENT OF HEALTH PROFESSIONS LICENSING. (a) The Texas Department of Health Professions Licensing is the primary state agency responsible for the oversight of health professions that are regulated by the state and assigned to the department by the legislature. (b) The department is governed by the board. Sec. 112.052. APPOINTMENT OF BOARD. (a) The board consists of seven members appointed by the governor with the advice and consent of the senate. (b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. Sec. 112.053. BOARD MEMBERSHIP; ELIGIBILITY. (a) Each member of the board must be a representative of the public. (b) A person is not eligible for appointment as a member of the board if the person or the person's spouse: (1) is regulated by the department; (2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the department; (3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the department; (4) uses or receives a substantial amount of tangible goods, services, or funds from the department, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses; or (5) is an employee of the department. Sec. 112.054. CONFLICT OF INTEREST. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. (b) A person may not be a member of the board and may not be a department employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if: (1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or (2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care. (c) A person may not be a member of the board or act as the general counsel to the department if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the department. Sec. 112.055. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the board may not vote, deliberate, or be counted as a member in attendance at a meeting of the board until the person completes a training program that complies with this section. (b) The training program must provide the person with information regarding: (1) this chapter and the programs operated by the department; (2) the role and functions of the department; (3) the rules of the department, with an emphasis on the rules that relate to disciplinary and investigatory authority; (4) the current budget for the department; (5) the results of the most recent formal audit of the department; (6) the requirements of the laws relating to open meetings, public information, administrative procedure, and conflicts of interest; and (7) any applicable ethics policies adopted by the department or the Texas Ethics Commission. (c) A person appointed to the board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office. Sec. 112.056. TERMS; VACANCY. (a) Members of the board serve staggered six-year terms. The terms of two or three members expire on February 1 of each odd-numbered year. (b) If a vacancy occurs during a member's term, the governor shall appoint a replacement to fill the unexpired term. Sec. 112.057. PRESIDING OFFICER. The governor shall designate a member of the board as the presiding officer of the board to serve in that capacity at the will of the governor. Sec. 112.058. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member: (1) does not have at the time of taking office the qualifications required by Section 112.053; (2) does not maintain during service on the board the qualifications required by Section 112.053; (3) is ineligible for membership under Section 112.054; (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or (5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board. (b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists. (c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and the attorney general that a potential ground for removal exists. Sec. 112.059. COMPENSATION; REIMBURSEMENT. (a) A board member may not receive compensation for service on the board. (b) A board member is entitled to reimbursement for actual and necessary expenses incurred in performing functions as a board member, subject to any applicable limitation on reimbursement provided by the General Appropriations Act. Sec. 112.060. MEETINGS. (a) The board shall meet at least once in each quarter of the fiscal year. (b) The board may meet at other times at the call of the presiding officer or as provided by board rules. Sec. 112.061. CIVIL LIABILITY. A member of the board is not liable in a civil action for an act performed in good faith while performing duties as a board member.
[Sections 112.062-112.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER DEPARTMENT PERSONNEL
Sec. 112.101. EXECUTIVE DIRECTOR. The board shall appoint the executive director of the department. The executive director serves at the will of the board. Sec. 112.102. EXECUTIVE DIRECTOR POWERS AND DUTIES. (a) The executive director shall: (1) perform any duty assigned by the board and other duties specified by law; (2) administer and enforce the department's programs; and (3) issue licenses authorized by the laws establishing programs regulated by the department. (b) The executive director may delegate any power or duty assigned to the executive director unless prohibited by statute or rule. (c) The executive director may: (1) impose sanctions and issue orders relating to a sanction as provided by Section 112.253; and (2) assess an administrative penalty or issue an order relating to an administrative penalty as authorized by a law establishing a program regulated by the department. Sec. 112.103. PERSONNEL. (a) The executive director may employ persons to perform the department's work and may prescribe their duties and compensation, subject to the personnel policies adopted by the board and the board's approval of the budget. (b) The executive director shall organize the personnel employed by the department according to specific licensing, enforcement, and regulatory functions rather than by the various professions regulated by the department. Sec. 112.104. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly separate the policy-making responsibilities of the board and the management responsibilities of the executive director and the staff of the department. Sec. 112.105. INFORMATION ON STANDARDS OF CONDUCT. The executive director or the executive director's designee shall provide to members of the board and to department employees, as often as necessary, information regarding the requirements for office or employment under this chapter, including information regarding a person's responsibilities under applicable laws relating to standards of conduct for state officers or employees. Sec. 112.106. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director shall develop a career ladder program. The program must require intra-agency postings of all nonentry level positions concurrently with any public posting. (b) The executive director shall develop a system of employee performance evaluations. The system must require that evaluations be conducted at least annually. All merit pay for department employees must be based on the system established under this subsection. Sec. 112.107. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. (b) The policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the department to avoid the unlawful employment practices described by Chapter 21, Labor Code; and (2) an analysis of the extent to which the composition of the department's personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law. (c) The policy statement must: (1) be updated annually; (2) be reviewed by the civil rights division of the Texas Workforce Commission for compliance with Subsection (b)(1); and (3) be filed with the governor. Sec. 112.108. STATE EMPLOYEE INCENTIVE PROGRAM. The executive director or the executive director's designee shall provide to department employees information and training on the benefits and methods of participation in the state employee incentive program.
[Sections 112.109-112.150 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 112.151. GENERAL POWERS AND DUTIES OF BOARD. (a) The board shall: (1) supervise the executive director's administration of the department; (2) formulate the policy objectives for the department; and (3) approve the department's operating budget and the department's requests for legislative appropriations. (b) The board: (1) may adopt rules as necessary for its own procedures; and (2) shall adopt rules as necessary to implement this chapter. Sec. 112.152. FEES. (a) The board shall set fees, in amounts reasonable and necessary to cover the costs of administering the programs or activities, for: (1) licenses issued by the department; (2) license renewals and late renewals; (3) examinations; and (4) any other program or activity administered by the department for which a fee is authorized. (b) The board by rule may provide for prorating fees for the issuance of a license so that a person regulated by the department pays only that portion of the applicable fee that is allocable to the number of months during which the license is valid. (c) The executive director shall develop cost management procedures that enable the board to determine with reasonable accuracy the cost to the department of each program and activity for which a fee is charged. Sec. 112.153. RULES REGARDING PROGRAMS REGULATED BY DEPARTMENT. The board shall adopt rules as necessary to implement each law establishing a program regulated by the department. Sec. 112.154. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices. (b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a license holder a rule that: (1) restricts the use of any advertising medium; (2) restricts the license holder's personal appearance or the use of the license holder's voice in an advertisement; (3) relates to the size or duration of an advertisement; or (4) restricts the use of a trade name in advertising. Sec. 112.155. USE OF TECHNOLOGY. The board shall develop and implement a policy requiring the executive director and department employees to research and propose appropriate technological solutions to improve the department's ability to perform its functions. The technological solutions must: (1) ensure that the public is able to easily find information about the department on the Internet; (2) ensure that persons who want to use the department's services are able to: (A) interact with the department through the Internet; and (B) access any service that can be provided effectively through the Internet; and (3) be cost-effective and developed through the department's planning processes. Sec. 112.156. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION PROCEDURES. (a) The board shall develop and implement a policy to encourage the use of: (1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of department rules; and (2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the department's jurisdiction. (b) The department's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (c) The board shall designate a trained person to: (1) coordinate the implementation of the policy adopted under Subsection (a); (2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and (3) collect data concerning the effectiveness of those procedures, as implemented by the department.
[Sections 112.157-112.200 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
Sec. 112.201. PUBLIC INTEREST INFORMATION. (a) The department shall prepare information of public interest describing the functions of the board and department and the procedures by which complaints are filed with and resolved by the board or executive director. (b) The department shall make the information available to the public and appropriate state agencies. Sec. 112.202. COMPLAINTS. (a) The executive director shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department. The department shall provide to the person filing the complaint and to each person who is a subject of the complaint information about the department's policies and procedures relating to complaint investigation and resolution. (b) The department shall maintain a file on each written complaint filed with the department. The file must include: (1) the name of the person who filed the complaint; (2) the date the complaint is received by the department; (3) the subject matter of the complaint; (4) the name of each person contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and (6) an explanation of the reason the file was closed, if the department closed the file without taking action other than to investigate the complaint. (c) The department, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person who is a subject of the complaint of the status of the investigation unless the notice would jeopardize an undercover investigation. (d) The board shall adopt a procedure for documenting complaints to the department from the time of the submission of the initial complaint to the final disposition of the complaint. The board shall publish the procedure in the Texas Register. Sec. 112.203. PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction. (b) The board shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the board's programs.
[Sections 112.204-112.250 reserved for expansion]
SUBCHAPTER F. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 112.251. INSPECTIONS AND INVESTIGATIONS. (a) The department may conduct inspections or investigations as necessary to enforce the laws administered by the department. (b) The department, during reasonable business hours, may: (1) enter the business premises of a person regulated by the department or a person suspected of being in violation of or threatening to violate a law establishing a regulatory program administered by the department or a rule or order of the board related to a regulatory program administered by the department; and (2) examine and copy records pertinent to the inspection or investigation. Sec. 112.252. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The attorney general or the executive director may institute an action for injunctive relief to restrain a violation by and to collect a civil penalty from a person that appears to be in violation of or threatening to violate a law establishing a regulatory program administered by the department or a rule or order of the board related to the regulatory program. (b) An action filed under this section must be filed in a district court in Travis County. (c) The attorney general and the department may recover reasonable expenses incurred in obtaining injunctive relief under this section, including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition expenses. Sec. 112.253. ADMINISTRATIVE SANCTIONS. (a) The department shall revoke, suspend, or refuse to renew a license or shall reprimand a license holder for a violation of this chapter, a law establishing a regulatory program administered by the department, or a rule or order of the board. (b) The department may place on probation a person whose license is suspended. If a license suspension is probated, the department may require the person to: (1) report regularly to the department on matters that are the basis of the probation; (2) limit practice to the areas prescribed by the department; or (3) continue or renew professional education until the person attains a degree of skill satisfactory to the department in those areas that are the basis for the probation. Sec. 112.254. RIGHT TO HEARING; ADMINISTRATIVE PROCEDURE. (a) A respondent is entitled to a hearing conducted by the State Office of Administrative Hearings if the department proposes to deny, suspend, or revoke a license. (b) A proceeding under this chapter to deny, suspend, or revoke a license is considered to be a contested case under Chapter 2001, Government Code. Sec. 112.255. AMOUNT OF ADMINISTRATIVE PENALTY. Notwithstanding any provision in a law governing a profession regulated by the department, an administrative penalty imposed under that law shall be in an amount not to exceed $5,000 for each day of a violation.
[Sections 112.256-112.300 reserved for expansion]
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 112.301. TERM OF LICENSE. Notwithstanding any provision in a law governing a profession regulated by the department, a license issued by the department expires on the second anniversary of the date the license is issued.
[Sections 112.302-112.350 reserved for expansion]
SUBCHAPTER H. HEALTH PROFESSIONS AFFECTED
Sec. 112.351. HEALTH PROFESSIONS. (a) Notwithstanding any other provision of law, the department is the state agency responsible for licensing and regulating the following health professions: (1) chiropractors under Chapter 201; (2) podiatrists under Chapter 202; (3) optometrists and therapeutic optometrists under Chapter 351; (4) psychologists under Chapter 501; (5) marriage and family therapists under Chapter 502; (6) licensed professional counselors under Chapter 503; (7) social workers under Chapter 505; (8) midwives under Chapter 203; (9) dietitians under Chapter 701; (10) perfusionists under Chapter 603; (11) athletic trainers under Chapter 451; (12) orthotists and prosthetists under Chapter 605; (13) speech-language pathologists and audiologists under Chapter 401; (14) hearing instrument fitters and dispensers under Chapter 402; (15) medical physicists under Chapter 602; (16) medical radiologic technologists under Chapter 601; (17) respiratory care practitioners under Chapter 604; (18) chemical dependency counselors under Chapter 504; (19) contact lens dispensers under Chapter 353; (20) massage therapists under Chapter 455; (21) opticians under Chapter 352; (22) personal emergency response system providers under Chapter 1702; and (23) acupuncturists under Chapter 205. (b) A reference in Subsection (a) to the regulation by the department of a profession under a specific law includes the authority to regulate related health professions and practices under that law and to exercise all powers and duties assigned to the licensing authority under that law. Sec. 112.352. HEALTH PROFESSIONS COUNCIL. The department shall administer the health professions council under Chapter 101 and perform the duties assigned to the council under that chapter, including the provision of administrative support for the office of patient protection under Subchapter G, Chapter 101. Sec. 112.353. TRANSITION PLAN. (a) The commissioner of the Department of State Health Services, the executive director of the Texas Department of Health Professions Licensing, and the executive director or comparable official responsible for the administration of each licensing program listed in Section 112.351 shall develop a transition plan to be submitted to the governor, lieutenant governor, and speaker of the house of representatives not later than January 1, 2006. (b) The transition plan described must provide for the transfer of powers, duties, functions, programs, and activities related to the regulation of the affected licensed professions to the department to ensure that the transfer is accomplished in a careful and deliberative manner. The plan must provide for the transition to be completed not later than September 1, 2007. (c) The department's responsibilities under this chapter are subject to the transition plan. (d) This section expires September 1, 2008. SECTION 2. In appointing the initial members of the Texas Board of Health Professions Licensing under Section 112.052, Occupations Code, as added by this Act, the governor shall appoint two members for terms expiring February 1, 2007, two members for terms expiring February 1, 2009, and three members for terms expiring February 1, 2011. SECTION 3. This Act takes effect September 1, 2005.