82R8166 EES-D

By: Kleinschmidt H.B. No. 1802

A BILL TO BE ENTITLED

AN ACT

relating to the registration and regulation of equine dental technicians, advertising by veterinarians and equine dental technicians, and the confidentiality of investigation files maintained by the State Board of Veterinary Medical Examiners; providing penalties.

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

SECTION 1. Section 801.002, Occupations Code, is amended by adding Subdivisions (1-a), (2-a), and (4-a) to read as follows:

(1-a) "Certified equine dental technician" means a person who holds an equine dental technician certificate issued under this chapter.

(2-a) "Dentistry" means any surgical procedure performed on the head or oral cavity. The term includes:

(A) any procedure that invades the tissues of the oral cavity, including a procedure to:

(i) remove sharp enamel projections;

(ii) treat malocclusions of the teeth;

(iii) reshape teeth; and

(iv) extract one or more teeth;

(B) the treatment and extraction of damaged or diseased teeth;

(C) the treatment of diseased teeth through restoration and endodontic procedures;

(D) periodontal treatments, including:

(i) the removal of calculus, soft deposits, plaque, and stains above the gum line; and

(ii) the smoothing, filing, and polishing of tooth surfaces above the gum line; and

(E) dental radiography.

(4-a) "Immediate supervision" means supervision of a person by a responsible veterinarian who is within audible and visual range of both the animal and the person under supervision.

SECTION 2. Section 801.151, Occupations Code, is amended by amending Subsection (c) and adding Subsections (e) and (f) to read as follows:

(c) The board shall adopt rules to:

(1) protect the public; [and]

(2) ensure that alternate therapies, including ultrasound diagnosis and therapy, magnetic field therapy, holistic medicine, homeopathy, chiropractic treatment, acupuncture, and laser therapy, are performed only by a veterinarian or under the supervision of a veterinarian; and

(3) ensure that equine dentistry is performed only by a veterinarian or by a certified equine dental technician under the appropriate level of supervision of a veterinarian.

(e) The board shall adopt rules to implement a jurisprudence examination for certified equine dental technicians, including rules relating to the development and administration of the examination, examination fees, guidelines for reexamination, examination grading, and provision of notice of examination results.

(f) The board by rule shall establish standards to ensure the health, safety, and welfare of animals treated by certified equine dental technicians.

SECTION 3. Section 801.153(b), Occupations Code, is amended to read as follows:

(b) In its rules to prohibit a false, misleading, or deceptive practice, the board may not include a rule that:

(1) restricts the person's use of any advertising medium;

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

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

[(4) restricts the person's advertisement under a trade name].

SECTION 4. Section 801.156, Occupations Code, is amended to read as follows:

Sec. 801.156. REGISTRY. (a) The board shall maintain a record of each license or certificate holder's [veterinarian's]:

(1) name;

(2) residence address; and

(3) business address.

(b) A license or certificate holder [veterinarian] shall notify the board of a change of business address or employer not later than the 60th day after the date the change takes effect.

SECTION 5. Section 801.203(b), Occupations Code, is amended to read as follows:

(b) The board shall list with its regular telephone number any toll-free telephone number established under other state law for presenting a complaint about a license or certificate holder [veterinarian].

SECTION 6. Section 801.2056(b), Occupations Code, is amended to read as follows:

(b) A complaint delegated under this section shall be referred for informal proceedings under Section 801.408 if:

(1) the committee determines that the complaint should not be dismissed or settled;

(2) the committee is unable to reach an agreed settlement; or

(3) the license or certificate holder [veterinarian] who is the subject of the complaint requests that the complaint be referred for informal proceedings.

SECTION 7. Section 801.207, Occupations Code, is amended to read as follows:

Sec. 801.207. CONFIDENTIALITY OF INVESTIGATION FILES [PUBLIC RECORD; EXCEPTION]. (a) [Except as provided by Subsection (b), a board record is a public record and is available for public inspection during normal business hours.

[(b)] An investigation record of the board, including a record relating to a complaint that is found to be groundless, is confidential and not subject to discovery, subpoena, or any other means of legal compulsion for release other than to the board or an employee or agent of the board.

(b) The board shall share information in investigation files with another state or federal regulatory agency or with a local, state, or federal law enforcement agency regardless of whether the investigation has been completed.

SECTION 8. The heading to Subchapter F, Chapter 801, Occupations Code, is amended to read as follows:

SUBCHAPTER F. LICENSE AND CERTIFICATION REQUIREMENTS

SECTION 9. Subchapter F, Chapter 801, Occupations Code, is amended by adding Sections 801.260 through 801.264 to read as follows:

Sec. 801.260. LICENSE OR CERTIFICATE REQUIRED FOR EQUINE DENTISTRY. A person may not perform equine dentistry or offer or attempt to act as an equine dental technician unless the person is:

(1) a veterinarian; or

(2) a certified equine dental technician performing under the supervision of a veterinarian.

Sec. 801.261. CERTIFIED EQUINE DENTAL TECHNICIAN: APPLICATION, QUALIFICATIONS, AND ISSUANCE. (a) The board shall adopt rules to establish qualifications for certified equine dental technicians. The qualifications at a minimum must provide that a person is qualified if the person:

(1) passes a jurisprudence examination conducted by the board in accordance with Section 801.264; and

(2) is not disqualified under this chapter or board rule.

(b) An applicant for an equine dental technician certificate must submit to the board:

(1) an application on the form prescribed by the board;

(2) information to enable the board to conduct a criminal background check as required by the board;

(3) recommendations from two veterinarians; and

(4) any other information required by the board.

Sec. 801.262. CERTIFIED EQUINE DENTAL TECHNICIAN SUPERVISION. (a) A certified equine dental technician may not perform equine dentistry unless the technician is under the supervision of a veterinarian as required by this section.

(b) A certified equine dental technician must be under the direct supervision of a veterinarian to:

(1) extract wolf teeth, premolars, caps, or deciduous teeth; or

(2) smooth or file teeth by floating.

(c) A certified equine dental technician must be under the immediate supervision of a veterinarian to extract incisors, canines, or molars.

(d) Subsection (b) may not be construed to prohibit an employee of a veterinarian who is not a certified equine dental technician from smoothing or filing teeth by floating if the employee is under the direct supervision of a veterinarian.

(e) Notwithstanding any other law, a certified equine dental technician may not under any circumstances administer any sedative, tranquilizer, analgesic, prescription medication, or other drug.

Sec. 801.263. CERTIFIED EQUINE DENTAL TECHNICIAN RESPONSIBILITY. A certified equine dental technician shall be held to the same standard of care as a veterinarian when the technician smoothes teeth by floating or performs any other dental procedure described in Section 801.262.

Sec. 801.264. JURISPRUDENCE EXAMINATION. The board shall develop and administer a jurisprudence examination for certified equine dental technicians to determine an applicant's knowledge of this chapter, board rules, and any other applicable laws of this state affecting the applicant's equine dentistry practice.

SECTION 10. The heading to Subchapter G, Chapter 801, Occupations Code, is amended to read as follows:

SUBCHAPTER G. LICENSE AND CERTIFICATE EXPIRATION AND RENEWAL

SECTION 11. Sections 801.301, 801.302, and 801.303, Occupations Code, are amended to read as follows:

Sec. 801.301. ANNUAL RENEWAL REQUIRED. (a) The board shall provide for the annual renewal of a license or certificate.

(b) The board by rule may adopt a system under which licenses or certificates expire on various dates during the year.

(c) For a year in which the license or certificate expiration date is changed, license or certificate fees payable on March 1 shall be prorated on a monthly basis so that each license or certificate holder pays only that portion of the fee that is allocable to the number of months during which the license or certificate is valid. On renewal of the license or certificate on the new expiration date, the total license or certificate renewal fee is payable.

Sec. 801.302. NOTICE OF LICENSE OR CERTIFICATE EXPIRATION. Not later than the 30th day before the expiration date of a person's license or certificate, the board shall send written notice of the impending license or certificate expiration to the person at the person's last known address according to the board's records.

Sec. 801.303. PROCEDURE FOR RENEWAL. (a) A person who is otherwise eligible to renew a license or certificate may renew an unexpired license or certificate by paying the required renewal fee to the board before the expiration date of the license or certificate. A person whose license or certificate has expired may not engage in activities that require a license or certificate until the license or certificate has been renewed.

(b) A person whose license or certificate has been expired for 90 days or less may renew the license or certificate by paying to the board a renewal fee that is equal to the sum of 1-1/2 times the renewal fee set by the board under Section 801.154(a) and the additional fee required by Section 801.154(b), if applicable.

(c) A person whose license or certificate has been expired for more than 90 days but less than one year may renew the license or certificate by paying to the board a renewal fee that is equal to the sum of two times the renewal fee set by the board under Section 801.154(a) and the additional fee required by Section 801.154(b), if applicable.

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

SECTION 12. Section 801.306, Occupations Code, is amended to read as follows:

Sec. 801.306. INACTIVE STATUS. The board by rule may provide for the placement of a license or certificate holder [veterinarian] on inactive status. The rules adopted under this section must include a limit on the time a license or certificate holder [veterinarian] may remain on inactive status.

SECTION 13. Section 801.307, Occupations Code, is amended to read as follows:

Sec. 801.307. CONTINUING EDUCATION. (a) The board by rule shall establish a minimum number of hours of continuing education required to renew a license or certificate.

(b) The board may:

(1) establish general categories of continuing education that meet the needs of veterinarians or certified equine dental technicians; and

(2) require a veterinarian or certified equine dental technician to successfully complete continuing education courses.

(c) The board may require a license or certificate holder who does not complete the required number of hours of continuing education in a year to make up the missed hours in later years. Hours required to be made up in a later year are in addition to the hours normally required to be completed in that year.

SECTION 14. The heading to Subchapter I, Chapter 801, Occupations Code, is amended to read as follows:

SUBCHAPTER I. LICENSE OR CERTIFICATE DENIAL AND DISCIPLINARY

PROCEDURES

SECTION 15. Sections 801.401(a), (c), and (d), Occupations Code, are amended to read as follows:

(a) If an applicant or a license or certificate holder is subject to denial of a license or certificate or to disciplinary action under Section 801.402, the board may:

(1) refuse to examine an applicant or to issue or renew a license or certificate;

(2) revoke or suspend a license or certificate;

(3) place on probation a license or certificate holder or person whose license or certificate has been suspended;

(4) reprimand a license or certificate holder; or

(5) impose an administrative penalty.

(c) The board may require a license or certificate holder whose license or certificate suspension is probated to:

(1) report regularly to the board on matters that are the basis of the probation;

(2) limit practice to the areas prescribed by the board; or

(3) continue or review continuing professional education until the license or certificate holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation.

(d) In addition to other disciplinary actions authorized by this subchapter, the board may require a license or certificate holder who violates this chapter to participate in a continuing education program. The board shall specify the continuing education programs that the license or certificate holder may attend and the number of hours that the license or certificate holder must complete. A continuing education program specified by the board must be relevant to the violation committed by the license or certificate holder.

SECTION 16. Section 801.402, Occupations Code, is amended to read as follows:

Sec. 801.402. GENERAL GROUNDS FOR LICENSE OR CERTIFICATE DENIAL OR DISCIPLINARY ACTION. A person is subject to denial of a license or certificate or to disciplinary action under Section 801.401 if the person:

(1) presents to the board dishonest or fraudulent evidence of the person's qualifications;

(2) commits fraud or deception in the examination process or to obtain a license or certificate;

(3) is chronically or habitually intoxicated, chemically dependent, or addicted to drugs;

(4) engages in dishonest or illegal practices in, or connected with, the practice of veterinary medicine or the practice of equine dentistry;

(5) is convicted of a felony under the laws of this state, another state, or the United States;

(6) engages in practices or conduct that violates the board's rules of professional conduct;

(7) permits another to use the person's license to practice veterinary medicine or certificate to practice equine dentistry in this state;

(8) fraudulently issues a health certificate, vaccination certificate, test chart, or other form used in the practice of veterinary medicine or the practice of equine dentistry that relates to the presence or absence of animal disease;

(9) issues a false certificate relating to the sale for human consumption of inedible animal products;

(10) commits fraud in connection with the application or reporting of a test of animal disease;

(11) pays or receives a kickback, rebate, bonus, or other remuneration for treating an animal or for referring a client to another provider of veterinary or equine dental services or goods;

(12) performs or prescribes unnecessary or unauthorized treatment;

(13) orders a prescription drug or controlled substance for the treatment of an animal without first establishing a veterinarian-client-patient relationship;

(14) refuses to admit a board representative to inspect the person's client and patient records and business premises during regular business hours;

(15) fails to keep the person's equipment and business premises in a sanitary condition;

(16) commits gross malpractice or a pattern of acts that indicate consistent malpractice, negligence, or incompetence in the practice of veterinary medicine or the practice of equine dentistry; or

(17) is subject to disciplinary action in another jurisdiction, including the suspension, probation, or revocation of a license to practice veterinary medicine or a certificate to practice equine dentistry issued by another jurisdiction.

SECTION 17. Sections 801.405 and 801.406, Occupations Code, are amended to read as follows:

Sec. 801.405. MENTAL INCOMPETENCE. (a) The board may suspend or revoke a license or certificate if a court finds that the license or certificate holder is mentally incompetent.

(b) If a court determines that a person whose license or certificate is suspended or revoked under this section is mentally competent, the board may reinstate the person's license or certificate.

Sec. 801.406. REQUIRED DISCIPLINARY ACTION FOR CERTAIN FELONY CONVICTIONS. (a) On conviction of a license or certificate holder of a felony under Section 485.033, Health and Safety Code, or Chapter 481 or 483 of that code, the board shall, after conducting an administrative hearing in which the fact of conviction is determined, impose a penalty as provided by Section 801.401. The board shall set the amount of the penalty to match the seriousness of the conviction.

(c) The board may reinstate or reissue a license or certificate suspended or revoked under this section only on an express determination based on substantial evidence contained in an investigative report indicating that reinstatement or reissuance of the license or certificate is in the best interests of:

(1) the public; and

(2) the person whose license or certificate has been suspended or revoked.

SECTION 18. Sections 801.407(a) and (d), Occupations Code, are amended to read as follows:

(a) A person is entitled to a hearing before the State Office of Administrative Hearings if the board:

(1) refuses to examine the person;

(2) denies the person's application for a license or certificate;

(3) revokes or suspends the person's license or certificate;

(4) places the person on probation;

(5) reprimands the person; or

(6) assesses an administrative penalty against the person.

(d) The board may conduct deliberations relating to a disciplinary action during executive session. At the conclusion of those deliberations, the board shall vote and announce its decision to the license or certificate holder in open session.

SECTION 19. Sections 801.408(b) and (e), Occupations Code, are amended to read as follows:

(b) Rules adopted under Subsection (a) must:

(1) provide the complainant and the license or certificate holder an opportunity to be heard; and

(2) require the presence of the board's general counsel or a representative of the attorney general during an informal proceeding to advise the board or the board's employees.

(e) At an informal proceeding under this section, and on agreement with the license or certificate holder, the board may order the license or certificate holder to refund an amount not to exceed the amount a client paid to the license or certificate holder instead of or in addition to imposing an administrative penalty under this chapter. The board may not require payment of other damages or estimate harm under this subsection.

SECTION 20. Section 801.409, Occupations Code, is amended to read as follows:

Sec. 801.409. TEMPORARY LICENSE OR CERTIFICATE SUSPENSION. (a) An executive committee of the board consisting of the president and two other board members appointed by the president may temporarily suspend the license or certificate of a license or certificate holder if the executive committee determines from the evidence or information presented to the committee that continued practice by the license or certificate holder constitutes a continuing or imminent threat to the public welfare. A temporary suspension may also be ordered on a majority vote of the board.

(b) The board by rule shall adopt procedures for the temporary suspension of a license or certificate under this section.

(c) A license or certificate temporarily suspended under this section may be suspended without notice or hearing if, at the time the suspension is ordered, a hearing on whether disciplinary proceedings under this chapter should be initiated against the license or certificate holder is scheduled to be held not later than the 14th day after the date of the suspension.

(d) A second hearing on the suspended license or certificate shall be held not later than the 60th day after the date the suspension is ordered. If the second hearing is not held in the time required by this subsection, the suspended license or certificate is automatically reinstated.

SECTION 21. Section 801.501, Occupations Code, is amended to read as follows:

Sec. 801.501. MONITORING LICENSE OR CERTIFICATE HOLDER. The board by rule shall develop a system for monitoring a license or certificate holder's compliance with the requirements of this chapter. The rules must include procedures to:

(1) monitor for compliance a license or certificate holder who is ordered by the board to perform certain acts; and

(2) identify and monitor a license or certificate holder who represents a risk to the public.

SECTION 22. Section 801.502(a), Occupations Code, is amended to read as follows:

(a) The board, through the attorney general or a district or county attorney, may bring an action for an injunction, or a proceeding incident to an injunction, to:

(1) enforce this chapter; or

(2) enjoin a person, including a corporation, organization, business trust, estate, trust, partnership, association, or other legal entity, from practicing veterinary medicine or equine dentistry in violation of this chapter.

SECTION 23. The heading to Section 801.503, Occupations Code, is amended to read as follows:

Sec. 801.503. ASSESSMENT OF CIVIL PENALTY AGAINST PERSON NOT LICENSED OR CERTIFIED.

SECTION 24. Section 801.503(a), Occupations Code, is amended to read as follows:

(a) A person not licensed or certified under this chapter, including a corporation, organization, business trust, estate, trust, partnership, association, or other legal entity, who violates this chapter or a rule adopted by the board under this chapter is subject to a civil penalty of $1,000 for each day of violation.

SECTION 25. Section 801.505, Occupations Code, is amended to read as follows:

Sec. 801.505. BOARD MEMBER OR EMPLOYEE; FINE. A board member or employee shall pay a fine of not less than $1,000 or more than $5,000 if the member or employee:

(1) issues a license or certificate other than as provided by this chapter; or

(2) provides to an applicant for examination a list of questions to be propounded at the examination.

SECTION 26. Section 801.508(a), Occupations Code, is amended to read as follows:

(a) If it appears to the board that a person is engaging in an act or practice that constitutes the practice of veterinary medicine without a license or the practice of equine dentistry without a license or certificate under this chapter, the board, after notice and opportunity for a hearing, may issue a cease and desist order prohibiting the person from engaging in the activity.

SECTION 27. Subchapter F, Chapter 411, Government Code, is amended by adding Section 411.0995 to read as follows:

Sec. 411.0995. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION: STATE BOARD OF VETERINARY MEDICAL EXAMINERS. The State Board of Veterinary Medical Examiners is entitled to obtain from the department criminal history record information maintained by the department that relates to a person who is:

(1) an applicant for a certificate to practice equine dentistry under Chapter 801, Occupations Code; or

(2) the holder of a license or certificate under that chapter.

SECTION 28. (a) Not later than June 1, 2012, the State Board of Veterinary Medical Examiners shall adopt the rules, procedures, and jurisprudence examination required to implement the registration of equine dental technicians under Chapter 801, Occupations Code, as amended by this Act.

(b) Notwithstanding Section 801.260, Occupations Code, as added by this Act, a person employed as an equine dental technician is not required to hold a certificate under Chapter 801, Occupations Code, and is not subject to the imposition of a penalty for not holding a certificate under that chapter before September 1, 2012.

SECTION 29. This Act takes effect September 1, 2011.