81R5222 YDB-D

By: Farabee H.B. No. 814

A BILL TO BE ENTITLED

AN ACT

relating to the registration and regulation of certain collection facilities and certified collectors that provide collection services in this state; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Title 12, Health and Safety Code, is amended by redesignating Chapter 1001 as Chapter 1001, Subtitle A, Title 12, and adding a heading for Subtitle A to read as follows:

SUBTITLE A. GENERAL PROVISIONS

SECTION 2. Title 12, Health and Safety Code, is amended by adding Subtitle B to read as follows:

SUBTITLE B. DEPARTMENT FUNCTIONS

CHAPTER 1051. COLLECTION FACILITIES AND CERTIFIED COLLECTORS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 1051.001. DEFINITIONS. In this chapter:

(1) "Certified collector" or "certified trainer" means an individual registered under this chapter to perform collection services.

(2) "Collection facility" means a facility registered under this chapter to perform collection services.

(3) "Department" means the Department of State Health Services.

(4) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

Sec. 1051.002. DEFINITION OF COLLECTION SERVICES. (a) In this chapter, collection services means the provision to a school, governmental agency, or employer of services to collect hair, saliva, urine, sweat, or other specimens from a human body, by persons who are trained and certified according to the type of specimen collected, for:

(1) submission to a laboratory that tests the specimen for the presence of drugs or alcohol; or

(2) testing of the specimen at an instrumented initial test facility or by the use of a Federal Drug Administration approved 510(k) cleared point of collection test device and the use of a secondary testing method for confirming positive results under Federal Drug Administration regulations; or

(3) testing of the specimen for the presence of alcohol in breath, oral fluid, or urine.

(b) The term does not include services that involve invasive procedures.

Sec. 1051.003. EXEMPTION. This chapter does not apply to:

(1) a laboratory certified under 42 U.S.C. Section 263a or regulated under other federal law or a facility regulated under federal law that conducts scientific tests on specimens;

(2) a person employed by a laboratory or facility described by Subdivision (1); or

(3) an individual who performs collection services for a federal agency or who is regulated under 49 C.F.R. Part 40.

[Sections 1051.004-1051.050 reserved for expansion]

SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES

Sec. 1051.051. ADMINISTRATION OF CHAPTER. The department shall administer this chapter.

Sec. 1051.052. DEPARTMENT STAFF. The department may employ administrative and clerical staff as necessary to carry out this chapter.

Sec. 1051.053. RULES. The executive commissioner shall adopt the rules necessary to administer this chapter, including rules:

(1) establishing minimum requirements for registration under this chapter;

(2) establishing grounds for suspending, denying, or revoking a certificate of registration or placing a certificate holder on probation; and

(3) adopting forms required by this chapter.

Sec. 1051.054. FEES. The executive commissioner by rule shall prescribe fees in reasonable amounts sufficient to cover the costs of administering this chapter, including fees for:

(1) an initial application for a certificate of registration;

(2) issuance of a certificate of registration;

(3) issuance of a renewal certificate of registration; and

(4) issuance of a duplicate certificate of registration or duplicate renewal certificate of registration.

Sec. 1051.055. RULES REGARDING ADVERTISING OR COMPETITIVE BIDDING. (a) The executive commissioner may not adopt rules restricting advertising or competitive bidding by a registrant except to prohibit false, misleading, or deceptive practices.

(b) In rules to prohibit false, misleading, or deceptive practices, the executive commissioner may not include a rule that:

(1) restricts the use of any medium for advertising;

(2) restricts the use of a registrant's personal appearance or voice in an advertisement;

(3) relates to the size or duration of an advertisement by the registrant; or

(4) restricts the registrant's advertisement under a trade name.

[Sections 1051.056-1051.100 reserved for expansion]

SUBCHAPTER C. CERTIFICATE OF REGISTRATION

Sec. 1051.101. REGISTRATION REQUIRED. (a) A person may not own or operate a facility in this state that performs collection services or represent to the public that the person performs collection services in this state unless the person is registered under this chapter.

(b) An individual may not perform collection services in this state or represent to the public that the individual performs collection services in this state unless the individual is registered under this chapter.

Sec. 1051.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. The department shall issue a certificate of registration to an applicant who:

(1) applies and pays a registration fee;

(2) presents evidence satisfactory to the department that the applicant:

(A) has successfully completed the number of hours of training required by the department; and

(B) holds a current certification by a national certifying organization recognized by the department or is certified by a collector trainer who is certified by a national certifying organization recognized by the department or who has received documented drug collection training in a drug testing laboratory training program;

(3) presents evidence satisfactory to the department that the applicant's collection facility maintains a collection site that meets the requirements of 49 C.F.R. Sections 40.41 and 40.43; and

(4) maintains professional liability insurance in coverage amounts that meet at least the minimum limits of coverage required by executive commissioner rule.

Sec. 1051.103. TERM OF CERTIFICATE. (a) A certificate of registration is valid for two years after the date of issuance.

(b) The department shall adopt a system under which certificates of registration expire and are renewed on various dates.

(c) Not later than the 60th day before the date a person's certificate of registration is scheduled to expire, the department shall send written notice of the impending expiration to the person at the person's last known address according to the records of the department.

(d) A person whose certificate of registration has expired may not make a representation for which a certificate of registration is required under Section 1051.101 or perform collection services until the certificate has been renewed.

Sec. 1051.104. RENEWAL OF CERTIFICATE. (a) To renew a certificate of registration, a person must submit an application for renewal in the manner prescribed by the department.

(b) The application must be accompanied by evidence that the applicant:

(1) has successfully completed the continuing education courses required by executive commissioner rule;

(2) has maintained eligibility for registration under this chapter; and

(3) has maintained liability insurance coverage as required by executive commissioner rule.

(c) A person who is otherwise eligible to renew a certificate of registration may renew an unexpired certificate by paying the required renewal fee to the department before the expiration date of the certificate.

(d) A person whose certificate of registration has been expired for 90 days or less may renew the certificate by paying to the department a renewal fee that is equal to 1-1/2 times the normally required renewal fee.

(e) A person whose certificate of registration has been expired for more than 90 days but less than one year may renew the certificate by paying to the department a renewal fee that is equal to two times the normally required renewal fee.

(f) A person whose certificate of registration has been expired for one year or more may not renew the certificate. The person may obtain a new certificate of registration by complying with the requirements and procedures, including the examination requirements, for an original certificate.

Sec. 1051.105. CONTINUING EDUCATION. (a) The department shall recognize continuing education programs for registrants under this chapter. A continuing education program may include a symposium offered by a trade organization or in-house training offered by a certified collector trainer.

(b) A person registered under this chapter shall:

(1) participate in continuing education programs to the extent required by the department to keep the person's certificate of registration; and

(2) annually complete at least four hours of continuing education on state and federal regulation of drug and alcohol testing.

[Sections 1051.106-1051.150 reserved for expansion]

SUBCHAPTER D. DISCIPLINARY PROCEDURES

Sec. 1051.151. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION. The department shall deny an application for a certificate of registration, suspend or revoke a certificate of registration, or reprimand a person who is registered under this chapter if the person:

(1) obtains a certificate of registration by means of fraud, misrepresentation, or concealment of a material fact;

(2) sells, barters, or offers to sell or barter a certificate of registration;

(3) violates a rule adopted by the executive commissioner; or

(4) violates Section 1051.101.

Sec. 1051.152. INVESTIGATION. (a) The department shall investigate:

(1) a person who engages in a practice that violates this chapter; and

(2) each complaint filed with the department against a person registered under this chapter.

(b) For a complaint related to collection and testing, the department in conducting an investigation shall consult with a peer review committee composed of collection service industry professionals who are registered with the department under this chapter and in good standing. To ensure an impartial evaluation by the peer review committee and to prevent personal gain by a committee member's participation in a consultation related to a competitor, the department may not disclose to the peer review committee the name of the person being investigated.

Sec. 1051.153. PROBATION. The department may place on probation a person whose certificate of registration is suspended. If the 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 review professional education until the person attains a degree of skill satisfactory to the department in those areas that are the basis of the probation.

Sec. 1051.154. HEARING. (a) A person whose application for a certificate of registration is denied, whose certificate of registration is suspended or revoked, or who is reprimanded is entitled to a hearing before the department if the person submits to the department a written request for the hearing.

(b) A hearing is governed by department rules for a contested hearing and by Chapter 2001, Government Code.

Sec. 1051.155. EMERGENCY SUSPENSION. (a) The department shall temporarily suspend the certificate of registration of a certificate holder if the department determines from the evidence or information presented to it that continued practice by the certificate holder would constitute a continuing and imminent threat to the public welfare.

(b) A certificate of registration may be suspended under this section without notice or hearing on the complaint if:

(1) action is taken to initiate proceedings for a hearing before the State Office of Administrative Hearings simultaneously with the temporary suspension; and

(2) a hearing is held as soon as practicable under this chapter and Chapter 2001, Government Code.

(c) The State Office of Administrative Hearings shall hold a preliminary hearing not later than the 14th day after the date of the temporary suspension to determine if there is probable cause to believe that a continuing and imminent threat to the public welfare still exists. A final hearing on the matter shall be held not later than the 61st day after the date of the temporary suspension.

[Sections 1051.156-1051.200 reserved for expansion]

SUBCHAPTER E. ADMINISTRATIVE PENALTY

Sec. 1051.201. IMPOSITION OF PENALTY. The department may assess an administrative penalty against a person who violates this chapter or a rule adopted under this chapter.

Sec. 1051.202. AMOUNT OF PENALTY. (a) The amount of the administrative penalty may not exceed $1,000 for each violation. Each day of a continuing violation is a separate violation.

(b) The amount shall be based on:

(1) the seriousness of the violation;

(2) the history of previous violations;

(3) the amount necessary to deter a future violation;

(4) efforts made to correct the violation; and

(5) any other matter that justice requires.

Sec. 1051.203. NOTICE OF VIOLATION AND PENALTY. If, after investigation of a possible violation and the facts surrounding the possible violation, the department determines that a violation occurred, the department shall give written notice of the violation to the person alleged to have committed the violation. The notice must:

(1) include a brief summary of the alleged violation;

(2) state the amount of the proposed administrative penalty based on the factors set forth in Section 1051.202(b); and

(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

Sec. 1051.204. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date the person receives the notice, the person may:

(1) accept the department's determination and proposed administrative penalty; or

(2) make a written request for a hearing on that determination.

(b) If the person accepts the department's determination, the commissioner of public health or the commissioner's designee by order shall approve the determination and assess the proposed penalty.

Sec. 1051.205. HEARING. (a) If the person requests a hearing in a timely manner, the department shall:

(1) set a hearing;

(2) give written notice of the hearing to the person; and

(3) designate a hearings examiner to conduct the hearing.

(b) The hearings examiner shall:

(1) make findings of fact and conclusions of law; and

(2) promptly issue to the commissioner of state health services or the commissioner's designee a proposal for decision as to the occurrence of the violation and the amount of any proposed administrative penalty.

Sec. 1051.206. DECISION. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the commissioner of state health services or the commissioner's designee by order may determine that:

(1) a violation occurred and assess an administrative penalty; or

(2) a violation did not occur.

(b) The department shall give notice of the order to the person. The notice must include:

(1) separate statements of the findings of fact and conclusions of law;

(2) the amount of any penalty assessed; and

(3) a statement of the person's right to judicial review of the order.

Sec. 1051.207. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the order becomes final, the person shall:

(1) pay the administrative penalty;

(2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or

(3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both.

(b) Not later than the 30th day after the date the order is final, a person who acts under Subsection (a)(3) may:

(1) stay enforcement of the penalty by:

(A) paying the penalty to the court for placement in an escrow account; or

(B) giving to the court a supersedeas bond approved by the court that:

(i) is for the amount of the penalty; and

(ii) is effective until judicial review of the order is final; or

(2) request the court to stay enforcement of the penalty by:

(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(B) giving a copy of the affidavit to the department by certified mail.

(c) If the department receives a copy of an affidavit under Subsection (b)(2), the department may file with the court, not later than the fifth day after the date the department receives the copy, a contest to the affidavit.

(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.

Sec. 1051.208. DETERMINATION BY COURT. (a) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty.

(b) If the court does not sustain the occurrence of the violation, the court shall order that a penalty is not owed.

Sec. 1051.209. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final:

(1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the amount of the penalty; or

(2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond.

(b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

Sec. 1051.210. COLLECTION OF PENALTY. (a) In this section, "reasonable expenses and costs" includes expenses incurred by the department and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses.

(b) If the person does not pay the amount of the administrative penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.

(c) The department may assess reasonable expenses and costs against a person in an administrative hearing if, as a result of the hearing, an administrative penalty is assessed against the person. The person shall pay expenses and costs assessed under this subsection not later than the 30th day after the date the order of the commissioner of state health services or the commissioner's designee requiring the payment of expenses and costs is final. The department may refer the matter to the attorney general for collection of expenses and costs.

(d) If the attorney general brings an action against a person to enforce an administrative penalty assessed under this chapter and the person is found liable for an administrative penalty, the attorney general may recover, on behalf of the attorney general and the department, reasonable expenses and costs.

Sec. 1051.211. ADMINISTRATIVE PROCEDURE. A proceeding for the assessment of an administrative penalty under this subchapter is subject to Chapter 2001, Government Code.

[Sections 1051.212-1051.250 reserved for expansion]

SUBCHAPTER F. OTHER PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 1051.251. ENFORCEMENT PROCEEDINGS; INJUNCTION. (a) The department, the attorney general, or the district or county attorney for the county in which an alleged violation of this chapter occurs shall, on receipt of a verified complaint, bring an appropriate administrative or judicial proceeding to enforce this chapter or a rule adopted under this chapter.

(b) The attorney general or an attorney representing the state may initiate an action for an injunction to prohibit a person from violating this chapter or a rule adopted under this chapter.

Sec. 1051.252. CIVIL PENALTY. In addition to any other remedy provided by law, including injunctive relief, a court may impose a civil penalty for a violation of this chapter or a rule adopted under this chapter.

SECTION 3. Not later than January 1, 2010:

(1) the executive commissioner of the Health and Human Services Commission shall adopt the rules necessary to implement Chapter 1051, Health and Safety Code, as added by this Act; and

(2) the Department of State Health Services shall develop the application and establish the procedures necessary to implement Chapter 1051, Health and Safety Code, as added by this Act.

SECTION 4. (a) Except as provided by Subsection (b), this Act takes effect September 1, 2009.

(b) Section 1051.101 and Subchapters D, E, and F, Health and Safety Code, as added by this Act, take effect January 1, 2010.