79R7485 JMM-D
By: Hinojosa S.B. No. 1688
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.