82R24766 NC-F
 
  By: King of Taylor, Hopson H.B. No. 2092
 
  Substitute the following for H.B. No. 2092:
 
  By:  Naishtat C.S.H.B. No. 2092
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to self-directed and semi-independent status of certain
  health care regulatory agencies; making an appropriation.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 301, Occupations Code, is amended by
  adding Subchapter B-1 to read as follows:
  SUBCHAPTER B-1.  SELF-DIRECTED AND SEMI-INDEPENDENT STATUS OF BOARD
         Sec. 301.071.  SELF-DIRECTED AND SEMI-INDEPENDENT STATUS.
  Notwithstanding any other provision of law, the board is
  self-directed and semi-independent as specified by this
  subchapter.
         Sec. 301.072.  BUDGET, REVENUES, AND EXPENSES. (a)  The
  executive director shall submit to the board a budget annually
  using generally accepted accounting principles. Notwithstanding
  any other provision of law, including the General Appropriations
  Act, the budget shall be adopted and approved only by the board.
         (b)  The board shall be responsible for all direct and
  indirect costs of the board's existence and operation. The board
  may not directly or indirectly cause the general revenue fund to
  incur any cost.
         (c)  Subject to any limitations in this chapter, the board
  may set the amounts of fees, penalties, charges, and revenues
  required or permitted by statute or rule as necessary for the
  purpose of carrying out the functions of the board and funding the
  budget adopted and approved under Subsection (a).
         (d)  Except as provided by Subsection (e), all fees and funds
  collected by the board and any funds appropriated to the board shall
  be deposited in interest-bearing deposit accounts in the Texas
  Treasury Safekeeping Trust Company. The comptroller shall contract
  with the board for the maintenance of the deposit accounts under
  terms comparable to a contract between a commercial banking
  institution and the institution's customers.
         (e)  The board shall annually remit $5.75 million to the
  general revenue fund.
         (f)  Periodically, the executive director shall submit to
  the board, as directed by the board, a report of the receipts and
  expenditures of the board.
         (g)  The fiscal year for the board begins on September 1 and
  ends on August 31.
         Sec. 301.073.  AUDITS. (a)  This subchapter does not affect
  the duty of the state auditor to audit the board. The state auditor
  shall enter into a contract and schedule with the board to conduct
  audits, including financial reports and performance audits.
         (b)  Not later than August 31 of each fiscal year, the board
  shall remit a nonrefundable retainer to the state auditor in an
  amount not less than $25,000.  The board shall reimburse the state
  auditor for all costs, in excess of the nonrefundable retainer
  amounts paid each fiscal year, incurred in performing the audits
  and shall provide to the governor a copy of any audit performed.
         Sec. 301.074.  RECORDS; REPORTING REQUIREMENTS. (a) The
  board shall keep financial and statistical information as necessary
  to disclose completely and accurately the financial condition and
  results of operations of the board.
         (b)  Before the beginning of each regular session of the
  legislature, the board shall submit to the legislature and the
  governor a report describing all of the board's activities in the
  previous biennium. The report must include:
               (1)  an audit as required by Section 301.073;
               (2)  a financial report of the previous fiscal year,
  including reports on financial condition and results of operations;
               (3)  a description of all changes in fees imposed by the
  board;
               (4)  a report on the number of examination candidates
  and license holders and the programs of study and enforcement
  activities of the board; and
               (5)  a list of all new rules adopted or repealed.
         (c)  In addition to the reporting requirements of Subsection
  (b), not later than November 1 of each year, the board shall submit
  to the governor, the committee of each house of the legislature that
  has jurisdiction over appropriations, and the Legislative Budget
  Board a report that contains:
               (1)  the salary for all board personnel and the total
  amount of per diem expenses and travel expenses paid for all board
  employees;
               (2)  the total amount of per diem expenses and travel
  expenses paid for each member of the board;
               (3)  the board's operating plan and annual budget; and
               (4)  a detailed report of all revenue received and all
  expenses incurred by the board in the previous 12 months.
         Sec. 301.075.  ABILITY TO CONTRACT. (a)  To carry out and
  promote the objectives of this chapter, the board may enter into
  contracts and do all other acts incidental to those contracts that
  are necessary for the administration of the board's affairs and for
  the attainment of the board's purposes, except as limited by
  Subsection (b).
         (b)  Any indebtedness, liability, or obligation of the board
  incurred under this section may not:
               (1)  create a debt or other liability of this state or
  another entity other than the board; or
               (2)  create any personal liability on the part of the
  members of the board or the board's employees.
         Sec. 301.076.  PROPERTY. The board may:
               (1)  acquire by purchase, lease, gift, or any other
  manner provided by law and maintain, use, and operate any real,
  personal, or mixed property, or any interest in property, necessary
  or convenient to the exercise of the powers, rights, privileges, or
  functions of the board;
               (2)  sell or otherwise dispose of any real, personal,
  or mixed property, or any interest in property, that the board
  determines is not necessary or convenient to the exercise of the
  board's powers, rights, privileges, or functions;
               (3)  construct, extend, improve, maintain, and
  reconstruct, or cause to construct, extend, improve, maintain, and
  reconstruct, and use and operate all facilities necessary or
  convenient to the exercise of the powers, rights, privileges, or
  functions of the board; and
               (4)  borrow money, as may be authorized from time to
  time by an affirmative vote of a two-thirds majority of the board,
  for a period not to exceed five years if necessary or convenient to
  the exercise of the board's powers, rights, privileges, or
  functions.
         Sec. 301.077.  ADMINISTRATIVE HEARINGS. (a) Not later than
  August 31 of each fiscal year, the board shall remit a nonrefundable
  retainer to the State Office of Administrative Hearings in an
  amount not less than $50,000 for hearings conducted under this
  chapter.
         (b)  The nonrefundable retainer shall be applied to the costs
  associated with conducting the hearings. If additional costs are
  incurred, the State Office of Administrative Hearings may assess
  and collect from the board reasonable fees, in excess of the
  nonrefundable retainer amount paid each fiscal year, associated
  with conducting a hearing under this chapter.
         Sec. 301.078.  SUITS. (a)  The office of the attorney
  general shall represent the board in any litigation.
         (b)  Not later than August 31 of each fiscal year, the board
  shall remit a nonrefundable retainer to the office of the attorney
  general in an amount not less than $25,000. The nonrefundable
  retainer shall be applied to any services provided to the board. If
  additional litigation services are required, the attorney general
  may assess and collect from the board reasonable attorney's fees,
  in excess of the nonrefundable retainer amount paid each fiscal
  year, associated with any litigation under this section.
         Sec. 301.079.  POST-PARTICIPATION LIABILITY. (a) If the
  board no longer has status under this subchapter as a self-directed
  semi-independent agency for any reason, the board shall be liable
  for any expenses or debts incurred by the board during the time the
  board was a self-directed semi-independent agency. The board's
  liability under this section includes liability for any lease
  entered into by the board. This state is not liable for any expense
  or debt covered by this subsection, and money from the general
  revenue fund may not be used to repay the expense or debt.
         (b)  If the board no longer has status under this subchapter
  as a self-directed semi-independent agency for any reason,
  ownership of any property or other asset acquired by the board
  during the time the board was a self-directed semi-independent
  agency, including unexpended fees in a deposit account in the Texas
  Treasury Safekeeping Trust Company, shall be transferred to this
  state.
         Sec. 301.080.  DUE PROCESS; OPEN GOVERNMENT. The board is:
               (1)  a governmental body for purposes of Chapters 551
  and 552, Government Code; and
               (2)  a state agency for purposes of Chapters 2001 and
  2005, Government Code.
         Sec. 301.081.  MEMBERSHIP IN EMPLOYEES RETIREMENT SYSTEM.
  Employees of the board are members of the Employees Retirement
  System of Texas under Chapter 812, Government Code, and the board's 
  transition to semi-independent status as provided by this
  subchapter has no effect on the employees' membership or any
  benefits under that system.
         Sec. 301.082.  GIFTS. (a)  Notwithstanding any other law,
  the board may not accept a gift, grant, or donation:
               (1)  from a party to an enforcement action; or
               (2)  to pursue a specific investigation or enforcement
  action.
         (b)  The board must:
               (1)  report each gift, grant, or donation that the
  board receives as a separate item in the board's report required
  under Section 301.074(b); and
               (2)  include with the report a statement indicating the
  purpose for which each gift, grant, or donation was donated and
  used.
         SECTION 2.  Section 301.056, Occupations Code, is amended to
  read as follows:
         Sec. 301.056.  PER DIEM; REIMBURSEMENT. (a) Each board
  member is entitled to receive a per diem [as set by the General
  Appropriations Act] for each day the member engages in the business
  of the board.
         (b)  A board member is entitled to reimbursement for travel
  expenses incurred while conducting board business, including
  expenses for transportation, meals, and lodging[, as provided by
  the General Appropriations Act].
         SECTION 3.  Section 301.059(c), Occupations Code, is amended
  to read as follows:
         (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.
         SECTION 4.  Section 301.155(a), Occupations Code, is amended
  to read as follows:
         (a)  The board by rule shall establish fees in amounts
  reasonable and necessary to cover the costs of administering this
  chapter. [The board may not set a fee that existed on September 1,
  1993, in an amount less than the amount of that fee on that date.]
         SECTION 5.  Chapter 552, Occupations Code, is amended by
  designating Sections 552.001 through 552.012 as Subchapter A and
  adding a subchapter heading to read as follows:
  SUBCHAPTER A.  BOARD
         SECTION 6.  Chapter 552, Occupations Code, is amended by
  adding Subchapter B to read as follows:
  SUBCHAPTER B.  SELF-DIRECTED AND SEMI-INDEPENDENT STATUS OF BOARD
         Sec. 552.051.  SELF-DIRECTED AND SEMI-INDEPENDENT STATUS.
  Notwithstanding any other provision of law, the board is
  self-directed and semi-independent as specified by this
  subchapter.
         Sec. 552.052.  BUDGET, REVENUES, AND EXPENSES. (a)  The
  executive director shall submit to the board a budget annually
  using generally accepted accounting principles. Notwithstanding
  any other provision of law, including the General Appropriations
  Act, the budget shall be adopted and approved only by the board.
         (b)  The board shall be responsible for all direct and
  indirect costs of the board's existence and operation. The board
  may not directly or indirectly cause the general revenue fund to
  incur any cost.
         (c)  Subject to any limitations in this subtitle, the board
  may set the amounts of fees, penalties, charges, and revenues
  required or permitted by statute or rule as necessary for the
  purpose of carrying out the functions of the board and funding the
  budget adopted and approved under Subsection (a).
         (d)  Except as provided by Subsection (e), all fees and funds
  collected by the board and any funds appropriated to the board shall
  be deposited in interest-bearing deposit accounts in the Texas
  Treasury Safekeeping Trust Company. The comptroller shall contract
  with the board for the maintenance of the deposit accounts under
  terms comparable to a contract between a commercial banking
  institution and the institution's customers.
         (e)  Not later than August 31, 2012, the board shall remit
  $1.15 million to the general revenue fund, and not later than August
  31 of each subsequent fiscal year, the board shall remit $800,000 to
  the general revenue fund.
         (f)  Periodically, the executive director shall submit to
  the board, as directed by the board, a report of the receipts and
  expenditures of the board.
         (g)  The fiscal year for the board begins on September 1 and
  ends on August 31.
         Sec. 552.053.  AUDITS. (a)  This subchapter does not affect
  the duty of the state auditor to audit the board. The state auditor
  shall enter into a contract and schedule with the board to conduct
  audits, including financial reports and performance audits.
         (b)  Not later than August 31 of each fiscal year, the board
  shall remit a nonrefundable retainer to the state auditor in an
  amount not less than $10,000. The board shall reimburse the state
  auditor for all costs, in excess of the nonrefundable retainer
  amounts paid each fiscal year, incurred in performing the audits
  and shall provide to the governor a copy of any audit performed.
         Sec. 552.054.  RECORDS; REPORTING REQUIREMENTS. (a) The
  board shall keep financial and statistical information as necessary
  to disclose completely and accurately the financial condition and
  results of operations of the board.
         (b)  Before the beginning of each regular session of the
  legislature, the board shall submit to the legislature and the
  governor a report describing all of the board's activities in the
  previous biennium. The report must include:
               (1)  an audit as required by Section 552.053;
               (2)  a financial report of the previous fiscal year,
  including reports on financial condition and results of operations;
               (3)  a description of all changes in fees imposed by the
  board;
               (4)  a report on the number of examination candidates,
  license holders, and registrants and the enforcement activities of
  the board; and
               (5)  a list of all new rules adopted or repealed.
         (c)  In addition to the reporting requirements of Subsection
  (b), not later than November 1 of each year, the board shall submit
  to the governor, the committee of each house of the legislature that
  has jurisdiction over appropriations, and the Legislative Budget
  Board a report that contains:
               (1)  the salary for all board personnel and the total
  amount of per diem expenses and travel expenses paid for all board
  employees;
               (2)  the total amount of per diem expenses and travel
  expenses paid for each member of the board;
               (3)  the board's operating plan and annual budget; and
               (4)  a detailed report of all revenue received and all
  expenses incurred by the board in the previous 12 months.
         Sec. 552.055.  ABILITY TO CONTRACT. (a)  To carry out and
  promote the objectives of this chapter, the board may enter into
  contracts and do all other acts incidental to those contracts that
  are necessary for the administration of the board's affairs and for
  the attainment of the board's purposes, except as limited by
  Subsection (b).
         (b)  Any indebtedness, liability, or obligation of the board
  incurred under this section may not:
               (1)  create a debt or other liability of this state or
  another entity other than the board; or
               (2)  create any personal liability on the part of the
  members of the board or the board's employees.
         Sec. 552.056.  PROPERTY. The board may:
               (1)  acquire by purchase, lease, gift, or any other
  manner provided by law and maintain, use, and operate any real,
  personal, or mixed property, or any interest in property, necessary
  or convenient to the exercise of the powers, rights, privileges, or
  functions of the board;
               (2)  sell or otherwise dispose of any real, personal,
  or mixed property, or any interest in property, that the board
  determines is not necessary or convenient to the exercise of the
  board's powers, rights, privileges, or functions;
               (3)  construct, extend, improve, maintain, and
  reconstruct, or cause to construct, extend, improve, maintain, and
  reconstruct, and use and operate all facilities necessary or
  convenient to the exercise of the powers, rights, privileges, or
  functions of the board; and
               (4)  borrow money, as may be authorized from time to
  time by an affirmative vote of a two-thirds majority of the board,
  for a period not to exceed five years if necessary or convenient to
  the exercise of the board's powers, rights, privileges, or
  functions.
         Sec. 552.057.  ADMINISTRATIVE HEARINGS. (a) Not later than
  August 31 of each fiscal year, the board shall remit a nonrefundable
  retainer to the State Office of Administrative Hearings in an
  amount not less than $55,000 for hearings conducted under Chapter
  565.
         (b)  The nonrefundable retainer shall be applied to the costs
  associated with conducting the hearings. If additional costs are
  incurred, the State Office of Administrative Hearings may assess
  and collect from the board reasonable fees, in excess of the
  nonrefundable retainer amount paid each fiscal year, associated
  with conducting a hearing under Chapter 565.
         Sec. 552.058.  SUITS. (a)  The office of the attorney
  general shall represent the board in any litigation.
         (b)  Not later than August 31 of each fiscal year, the board
  shall remit a nonrefundable retainer to the office of the attorney
  general in an amount not less than $40,000. The nonrefundable
  retainer shall be applied to any services provided to the board. If
  additional litigation services are required, the attorney general
  may assess and collect from the board reasonable attorney's fees,
  in excess of the nonrefundable retainer amount paid each fiscal
  year, associated with any litigation under this section.
         Sec. 552.059.  POST-PARTICIPATION LIABILITY. (a) If the
  board no longer has status under this subchapter as a self-directed
  semi-independent agency for any reason, the board shall be liable
  for any expenses or debts incurred by the board during the time the
  board was a self-directed semi-independent agency. The board's
  liability under this section includes liability for any lease
  entered into by the board. This state is not liable for any expense
  or debt covered by this subsection, and money from the general
  revenue fund may not be used to repay the expense or debt.
         (b)  If the board no longer has status under this subchapter
  as a self-directed semi-independent agency for any reason,
  ownership of any property or other asset acquired by the board
  during the time the board was a self-directed semi-independent
  agency, including unexpended fees in a deposit account in the Texas
  Treasury Safekeeping Trust Company, shall be transferred to this
  state.
         Sec. 552.060.  DUE PROCESS; OPEN GOVERNMENT. The board is:
               (1)  a governmental body for purposes of Chapters 551
  and 552, Government Code; and
               (2)  a state agency for purposes of Chapters 2001 and
  2005, Government Code.
         Sec. 552.061.  MEMBERSHIP IN EMPLOYEES RETIREMENT SYSTEM.
  Employees of the board are members of the Employees Retirement
  System of Texas under Chapter 812, Government Code, and the board's 
  transition to semi-independent status as provided by this
  subchapter has no effect on the employees' membership or any
  benefits under that system.
         Sec. 552.062.  GIFTS. (a)  Notwithstanding any other law,
  the board may not accept a gift, grant, or donation:
               (1)  from a party to an enforcement action; or
               (2)  to pursue a specific investigation or enforcement
  action.
         (b)  The board must:
               (1)  report each gift, grant, or donation that the
  board receives as a separate item in the board's report required
  under Section 552.054(b); and
               (2)  include with the report a statement indicating the
  purpose for which each gift, grant, or donation was donated and
  used.
         Sec. 552.063.  HEALTH PROFESSIONS COUNCIL. Not later than
  August 31 of each fiscal year, the board shall remit a nonrefundable
  prorated assessment to the Health Professions Council in an amount
  not less than $81,848 for fiscal year 2012, $79,406 for fiscal year
  2013, and $79,000 for each subsequent fiscal year. The amount
  remitted shall be applied to the board's prorated assessment for
  the operation and maintenance of the shared regulatory database
  system.
         SECTION 7.  Section 552.006(c), Occupations Code, is amended
  to read as follows:
         (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.
         SECTION 8.  Section 552.009, Occupations Code, is amended to
  read as follows:
         Sec. 552.009.  PER DIEM; REIMBURSEMENT. (a) Each member of
  the board is entitled to a per diem [set by legislative
  appropriation] for each day the member engages in board business.
         (b)  A member is entitled to reimbursement for travel
  expenses [as prescribed by the General Appropriations Act].
         SECTION 9.  Section 564.051(c), Occupations Code, is amended
  to read as follows:
         (c)  Funds and surcharges collected under this section
  [shall be deposited in the general revenue fund and] may only be
  used by the board to administer the program authorized by this
  section, including providing for initial evaluation and referral of
  an impaired pharmacist or pharmacy student by a qualified health
  professional and paying the administrative costs incurred by the
  board in connection with that funding.  The money may not be used
  for costs incurred for treatment or rehabilitation after initial
  evaluation and referral.
         SECTION 10.  Sections 301.165, 554.007(a), and 554.013,
  Occupations Code, are repealed.
         SECTION 11.  (a)  To provide a reasonable period for the
  Texas Board of Nursing and the Texas State Board of Pharmacy to
  establish the boards as self-directed and semi-independent under
  Subchapter B-1, Chapter 301, and Subchapter B, Chapter 552,
  Occupations Code, as added by this Act, the following amounts are
  appropriated from the general revenue fund to each board:
               (1)  for the state fiscal year ending August 31, 2012,
  an amount equal to 50 percent of the amount of general revenue
  appropriated to the board for the state fiscal year ending August
  31, 2011; and
               (2)  for the state fiscal year ending August 31, 2013,
  an amount equal to 50 percent of the amount of general revenue
  appropriated to the board for the state fiscal year ending August
  31, 2011.
         (b)  Subject to Section 301.072 or 552.052, Occupations
  Code, as added by this Act, the appropriations made by Subsection
  (a) of this section may be spent by the board to which the
  appropriation is made as the board directs. Each board shall repay
  to the general revenue fund the appropriation made to the board for
  the state fiscal year ending August 31, 2012, not later than that
  date and as funds become available. Each board shall repay to the
  general revenue fund the appropriation made to the board for the
  state fiscal year ending August 31, 2013, not later than that date
  and as funds become available.  The repayment of an appropriation
  under this subsection is required in addition to the funds required
  to be remitted to the general revenue fund under Section 301.072(e)
  or 552.052(e), Occupations Code, as added by this Act.
         (c)  The transfer of the Texas Board of Nursing or the Texas
  State Board of Pharmacy to self-directed and semi-independent
  status under Subchapter B-1, Chapter 301, or Subchapter B, Chapter
  552, Occupations Code, as added by this Act, and the expiration of
  self-directed and semi-independent status of a board may not act to
  cancel, suspend, or prevent:
               (1)  any debt owed to or by the board;
               (2)  any fine, tax, penalty, or obligation of any
  party;
               (3)  any contract or other obligation of any party; or
               (4)  any action taken by the board in the
  administration or enforcement of the board's duties.
         (d)  The Texas Board of Nursing and the Texas State Board of
  Pharmacy shall continue to have and exercise the powers and duties
  allocated to each board under law, except as specifically provided
  by this Act.
         (e)  Title to or ownership of all supplies, materials,
  records, equipment, books, papers, and furniture used by the Texas
  Board of Nursing or the Texas State Board of Pharmacy is transferred
  to each respective board. This Act does not affect any property
  owned by either board on or before the effective date of this Act.
         (f)  The Texas Board of Nursing shall pay rent to the state
  for the use and occupancy of state-owned office space. Reasonable
  rent shall be determined by the Texas Facilities Commission.
  Aggregate rental payments may not be less than $278,000 each fiscal
  year.
         (g)  The Texas State Board of Pharmacy shall pay rent to the
  state for the use and occupancy of state-owned office space.
  Reasonable rent shall be determined by the Texas Facilities
  Commission. Aggregate rental payments may not be less than $162,000
  each fiscal year.
         (h)  If a conflict exists between this Act and another Act of
  the 82nd Legislature, Regular Session, 2011, that relates to the
  self-directed and semi-independent status of the Texas Board of
  Nursing or the Texas State Board of Pharmacy, this Act controls
  without regard to the relative dates of enactment.
         SECTION 12.  This Act takes effect September 1, 2011.