Texas 2009 - 81st Regular

Texas House Bill HB814 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R5222 YDB-D
2	2	By: Farabee H.B. No. 814
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the registration and regulation of certain collection
8	8	facilities and certified collectors that provide collection
9	9	services in this state; providing penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 12, Health and Safety Code, is amended by
12	12	redesignating Chapter 1001 as Chapter 1001, Subtitle A, Title 12,
13	13	and adding a heading for Subtitle A to read as follows:
14	14	SUBTITLE A. GENERAL PROVISIONS
15	15	SECTION 2. Title 12, Health and Safety Code, is amended by
16	16	adding Subtitle B to read as follows:
17	17	SUBTITLE B. DEPARTMENT FUNCTIONS
18	18	CHAPTER 1051. COLLECTION FACILITIES AND CERTIFIED COLLECTORS
19	19	SUBCHAPTER A. GENERAL PROVISIONS
20	20	Sec. 1051.001. DEFINITIONS. In this chapter:
21	21	(1) "Certified collector" or "certified trainer"
22	22	means an individual registered under this chapter to perform
23	23	collection services.
24	24	(2) "Collection facility" means a facility registered
25	25	under this chapter to perform collection services.
26	26	(3) "Department" means the Department of State Health
27	27	Services.
28	28	(4) "Executive commissioner" means the executive
29	29	commissioner of the Health and Human Services Commission.
30	30	Sec. 1051.002. DEFINITION OF COLLECTION SERVICES. (a) In
31	31	this chapter, collection services means the provision to a school,
32	32	governmental agency, or employer of services to collect hair,
33	33	saliva, urine, sweat, or other specimens from a human body, by
34	34	persons who are trained and certified according to the type of
35	35	specimen collected, for:
36	36	(1) submission to a laboratory that tests the specimen
37	37	for the presence of drugs or alcohol; or
38	38	(2) testing of the specimen at an instrumented initial
39	39	test facility or by the use of a Federal Drug Administration
40	40	approved 510(k) cleared point of collection test device and the use
41	41	of a secondary testing method for confirming positive results under
42	42	Federal Drug Administration regulations; or
43	43	(3) testing of the specimen for the presence of
44	44	alcohol in breath, oral fluid, or urine.
45	45	(b) The term does not include services that involve invasive
46	46	procedures.
47	47	Sec. 1051.003. EXEMPTION. This chapter does not apply to:
48	48	(1) a laboratory certified under 42 U.S.C. Section
49	49	263a or regulated under other federal law or a facility regulated
50	50	under federal law that conducts scientific tests on specimens;
51	51	(2) a person employed by a laboratory or facility
52	52	described by Subdivision (1); or
53	53	(3) an individual who performs collection services for
54	54	a federal agency or who is regulated under 49 C.F.R. Part 40.
55	55	[Sections 1051.004-1051.050 reserved for expansion]
56	56	SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES
57	57	Sec. 1051.051. ADMINISTRATION OF CHAPTER. The department
58	58	shall administer this chapter.
59	59	Sec. 1051.052. DEPARTMENT STAFF. The department may employ
60	60	administrative and clerical staff as necessary to carry out this
61	61	chapter.
62	62	Sec. 1051.053. RULES. The executive commissioner shall
63	63	adopt the rules necessary to administer this chapter, including
64	64	rules:
65	65	(1) establishing minimum requirements for
66	66	registration under this chapter;
67	67	(2) establishing grounds for suspending, denying, or
68	68	revoking a certificate of registration or placing a certificate
69	69	holder on probation; and
70	70	(3) adopting forms required by this chapter.
71	71	Sec. 1051.054. FEES. The executive commissioner by rule
72	72	shall prescribe fees in reasonable amounts sufficient to cover the
73	73	costs of administering this chapter, including fees for:
74	74	(1) an initial application for a certificate of
75	75	registration;
76	76	(2) issuance of a certificate of registration;
77	77	(3) issuance of a renewal certificate of registration;
78	78	and
79	79	(4) issuance of a duplicate certificate of
80	80	registration or duplicate renewal certificate of registration.
81	81	Sec. 1051.055. RULES REGARDING ADVERTISING OR COMPETITIVE
82	82	BIDDING. (a) The executive commissioner may not adopt rules
83	83	restricting advertising or competitive bidding by a registrant
84	84	except to prohibit false, misleading, or deceptive practices.
85	85	(b) In rules to prohibit false, misleading, or deceptive
86	86	practices, the executive commissioner may not include a rule that:
87	87	(1) restricts the use of any medium for advertising;
88	88	(2) restricts the use of a registrant's personal
89	89	appearance or voice in an advertisement;
90	90	(3) relates to the size or duration of an
91	91	advertisement by the registrant; or
92	92	(4) restricts the registrant's advertisement under a
93	93	trade name.
94	94	[Sections 1051.056-1051.100 reserved for expansion]
95	95	SUBCHAPTER C. CERTIFICATE OF REGISTRATION
96	96	Sec. 1051.101. REGISTRATION REQUIRED. (a) A person may not
97	97	own or operate a facility in this state that performs collection
98	98	services or represent to the public that the person performs
99	99	collection services in this state unless the person is registered
100	100	under this chapter.
101	101	(b) An individual may not perform collection services in
102	102	this state or represent to the public that the individual performs
103	103	collection services in this state unless the individual is
104	104	registered under this chapter.
105	105	Sec. 1051.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS.
106	106	The department shall issue a certificate of registration to an
107	107	applicant who:
108	108	(1) applies and pays a registration fee;
109	109	(2) presents evidence satisfactory to the department
110	110	that the applicant:
111	111	(A) has successfully completed the number of
112	112	hours of training required by the department; and
113	113	(B) holds a current certification by a national
114	114	certifying organization recognized by the department or is
115	115	certified by a collector trainer who is certified by a national
116	116	certifying organization recognized by the department or who has
117	117	received documented drug collection training in a drug testing
118	118	laboratory training program;
119	119	(3) presents evidence satisfactory to the department
120	120	that the applicant's collection facility maintains a collection
121	121	site that meets the requirements of 49 C.F.R. Sections 40.41 and
122	122	40.43; and
123	123	(4) maintains professional liability insurance in
124	124	coverage amounts that meet at least the minimum limits of coverage
125	125	required by executive commissioner rule.
126	126	Sec. 1051.103. TERM OF CERTIFICATE. (a) A certificate of
127	127	registration is valid for two years after the date of issuance.
128	128	(b) The department shall adopt a system under which
129	129	certificates of registration expire and are renewed on various
130	130	dates.
131	131	(c) Not later than the 60th day before the date a person's
132	132	certificate of registration is scheduled to expire, the department
133	133	shall send written notice of the impending expiration to the person
134	134	at the person's last known address according to the records of the
135	135	department.
136	136	(d) A person whose certificate of registration has expired
137	137	may not make a representation for which a certificate of
138	138	registration is required under Section 1051.101 or perform
139	139	collection services until the certificate has been renewed.
140	140	Sec. 1051.104. RENEWAL OF CERTIFICATE. (a) To renew a
141	141	certificate of registration, a person must submit an application
142	142	for renewal in the manner prescribed by the department.
143	143	(b) The application must be accompanied by evidence that the
144	144	applicant:
145	145	(1) has successfully completed the continuing
146	146	education courses required by executive commissioner rule;
147	147	(2) has maintained eligibility for registration under
148	148	this chapter; and
149	149	(3) has maintained liability insurance coverage as
150	150	required by executive commissioner rule.
151	151	(c) A person who is otherwise eligible to renew a
152	152	certificate of registration may renew an unexpired certificate by
153	153	paying the required renewal fee to the department before the
154	154	expiration date of the certificate.
155	155	(d) A person whose certificate of registration has been
156	156	expired for 90 days or less may renew the certificate by paying to
157	157	the department a renewal fee that is equal to 1-1/2 times the
158	158	normally required renewal fee.
159	159	(e) A person whose certificate of registration has been
160	160	expired for more than 90 days but less than one year may renew the
161	161	certificate by paying to the department a renewal fee that is equal
162	162	to two times the normally required renewal fee.
163	163	(f) A person whose certificate of registration has been
164	164	expired for one year or more may not renew the certificate. The
165	165	person may obtain a new certificate of registration by complying
166	166	with the requirements and procedures, including the examination
167	167	requirements, for an original certificate.
168	168	Sec. 1051.105. CONTINUING EDUCATION. (a) The department
169	169	shall recognize continuing education programs for registrants
170	170	under this chapter. A continuing education program may include a
171	171	symposium offered by a trade organization or in-house training
172	172	offered by a certified collector trainer.
173	173	(b) A person registered under this chapter shall:
174	174	(1) participate in continuing education programs to
175	175	the extent required by the department to keep the person's
176	176	certificate of registration; and
177	177	(2) annually complete at least four hours of
178	178	continuing education on state and federal regulation of drug and
179	179	alcohol testing.
180	180	[Sections 1051.106-1051.150 reserved for expansion]
181	181	SUBCHAPTER D. DISCIPLINARY PROCEDURES
182	182	Sec. 1051.151. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION.
183	183	The department shall deny an application for a certificate of
184	184	registration, suspend or revoke a certificate of registration, or
185	185	reprimand a person who is registered under this chapter if the
186	186	person:
187	187	(1) obtains a certificate of registration by means of
188	188	fraud, misrepresentation, or concealment of a material fact;
189	189	(2) sells, barters, or offers to sell or barter a
190	190	certificate of registration;
191	191	(3) violates a rule adopted by the executive
192	192	commissioner; or
193	193	(4) violates Section 1051.101.
194	194	Sec. 1051.152. INVESTIGATION. (a) The department shall
195	195	investigate:
196	196	(1) a person who engages in a practice that violates
197	197	this chapter; and
198	198	(2) each complaint filed with the department against a
199	199	person registered under this chapter.
200	200	(b) For a complaint related to collection and testing, the
201	201	department in conducting an investigation shall consult with a peer
202	202	review committee composed of collection service industry
203	203	professionals who are registered with the department under this
204	204	chapter and in good standing. To ensure an impartial evaluation by
205	205	the peer review committee and to prevent personal gain by a
206	206	committee member's participation in a consultation related to a
207	207	competitor, the department may not disclose to the peer review
208	208	committee the name of the person being investigated.
209	209	Sec. 1051.153. PROBATION. The department may place on
210	210	probation a person whose certificate of registration is suspended.
211	211	If the suspension is probated, the department may require the
212	212	person to:
213	213	(1) report regularly to the department on matters that
214	214	are the basis of the probation;
215	215	(2) limit practice to the areas prescribed by the
216	216	department; or
217	217	(3) continue or review professional education until
218	218	the person attains a degree of skill satisfactory to the department
219	219	in those areas that are the basis of the probation.
220	220	Sec. 1051.154. HEARING. (a) A person whose application for
221	221	a certificate of registration is denied, whose certificate of
222	222	registration is suspended or revoked, or who is reprimanded is
223	223	entitled to a hearing before the department if the person submits to
224	224	the department a written request for the hearing.
225	225	(b) A hearing is governed by department rules for a
226	226	contested hearing and by Chapter 2001, Government Code.
227	227	Sec. 1051.155. EMERGENCY SUSPENSION. (a) The department
228	228	shall temporarily suspend the certificate of registration of a
229	229	certificate holder if the department determines from the evidence
230	230	or information presented to it that continued practice by the
231	231	certificate holder would constitute a continuing and imminent
232	232	threat to the public welfare.
233	233	(b) A certificate of registration may be suspended under
234	234	this section without notice or hearing on the complaint if:
235	235	(1) action is taken to initiate proceedings for a
236	236	hearing before the State Office of Administrative Hearings
237	237	simultaneously with the temporary suspension; and
238	238	(2) a hearing is held as soon as practicable under this
239	239	chapter and Chapter 2001, Government Code.
240	240	(c) The State Office of Administrative Hearings shall hold a
241	241	preliminary hearing not later than the 14th day after the date of
242	242	the temporary suspension to determine if there is probable cause to
243	243	believe that a continuing and imminent threat to the public welfare
244	244	still exists. A final hearing on the matter shall be held not later
245	245	than the 61st day after the date of the temporary suspension.
246	246	[Sections 1051.156-1051.200 reserved for expansion]
247	247	SUBCHAPTER E. ADMINISTRATIVE PENALTY
248	248	Sec. 1051.201. IMPOSITION OF PENALTY. The department may
249	249	assess an administrative penalty against a person who violates this
250	250	chapter or a rule adopted under this chapter.
251	251	Sec. 1051.202. AMOUNT OF PENALTY. (a) The amount of the
252	252	administrative penalty may not exceed $1,000 for each violation.
253	253	Each day of a continuing violation is a separate violation.
254	254	(b) The amount shall be based on:
255	255	(1) the seriousness of the violation;
256	256	(2) the history of previous violations;
257	257	(3) the amount necessary to deter a future violation;
258	258	(4) efforts made to correct the violation; and
259	259	(5) any other matter that justice requires.
260	260	Sec. 1051.203. NOTICE OF VIOLATION AND PENALTY. If, after
261	261	investigation of a possible violation and the facts surrounding the
262	262	possible violation, the department determines that a violation
263	263	occurred, the department shall give written notice of the violation
264	264	to the person alleged to have committed the violation. The notice
265	265	must:
266	266	(1) include a brief summary of the alleged violation;
267	267	(2) state the amount of the proposed administrative
268	268	penalty based on the factors set forth in Section 1051.202(b); and
269	269	(3) inform the person of the person's right to a
270	270	hearing on the occurrence of the violation, the amount of the
271	271	penalty, or both.
272	272	Sec. 1051.204. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
273	273	Not later than the 20th day after the date the person receives the
274	274	notice, the person may:
275	275	(1) accept the department's determination and proposed
276	276	administrative penalty; or
277	277	(2) make a written request for a hearing on that
278	278	determination.
279	279	(b) If the person accepts the department's determination,
280	280	the commissioner of public health or the commissioner's designee by
281	281	order shall approve the determination and assess the proposed
282	282	penalty.
283	283	Sec. 1051.205. HEARING. (a) If the person requests a
284	284	hearing in a timely manner, the department shall:
285	285	(1) set a hearing;
286	286	(2) give written notice of the hearing to the person;
287	287	and
288	288	(3) designate a hearings examiner to conduct the
289	289	hearing.
290	290	(b) The hearings examiner shall:
291	291	(1) make findings of fact and conclusions of law; and
292	292	(2) promptly issue to the commissioner of state health
293	293	services or the commissioner's designee a proposal for decision as
294	294	to the occurrence of the violation and the amount of any proposed
295	295	administrative penalty.
296	296	Sec. 1051.206. DECISION. (a) Based on the findings of
297	297	fact, conclusions of law, and proposal for decision, the
298	298	commissioner of state health services or the commissioner's
299	299	designee by order may determine that:
300	300	(1) a violation occurred and assess an administrative
301	301	penalty; or
302	302	(2) a violation did not occur.
303	303	(b) The department shall give notice of the order to the
304	304	person. The notice must include:
305	305	(1) separate statements of the findings of fact and
306	306	conclusions of law;
307	307	(2) the amount of any penalty assessed; and
308	308	(3) a statement of the person's right to judicial
309	309	review of the order.
310	310	Sec. 1051.207. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
311	311	(a) Not later than the 30th day after the date the order becomes
312	312	final, the person shall:
313	313	(1) pay the administrative penalty;
314	314	(2) pay the penalty and file a petition for judicial
315	315	review contesting the fact of the violation, the amount of the
316	316	penalty, or both; or
317	317	(3) without paying the penalty, file a petition for
318	318	judicial review contesting the fact of the violation, the amount of
319	319	the penalty, or both.
320	320	(b) Not later than the 30th day after the date the order is
321	321	final, a person who acts under Subsection (a)(3) may:
322	322	(1) stay enforcement of the penalty by:
323	323	(A) paying the penalty to the court for placement
324	324	in an escrow account; or
325	325	(B) giving to the court a supersedeas bond
326	326	approved by the court that:
327	327	(i) is for the amount of the penalty; and
328	328	(ii) is effective until judicial review of
329	329	the order is final; or
330	330	(2) request the court to stay enforcement of the
331	331	penalty by:
332	332	(A) filing with the court a sworn affidavit of
333	333	the person stating that the person is financially unable to pay the
334	334	penalty and is financially unable to give the supersedeas bond; and
335	335	(B) giving a copy of the affidavit to the
336	336	department by certified mail.
337	337	(c) If the department receives a copy of an affidavit under
338	338	Subsection (b)(2), the department may file with the court, not
339	339	later than the fifth day after the date the department receives the
340	340	copy, a contest to the affidavit.
341	341	(d) The court shall hold a hearing on the facts alleged in
342	342	the affidavit as soon as practicable and shall stay enforcement of
343	343	the penalty on finding that the alleged facts are true. The person
344	344	who files an affidavit has the burden of proving that the person is
345	345	financially unable to pay the amount of the penalty and to give a
346	346	supersedeas bond.
347	347	Sec. 1051.208. DETERMINATION BY COURT. (a) If the court
348	348	sustains the occurrence of the violation, the court may uphold or
349	349	reduce the amount of the administrative penalty and order the
350	350	person to pay the full or reduced penalty.
351	351	(b) If the court does not sustain the occurrence of the
352	352	violation, the court shall order that a penalty is not owed.
353	353	Sec. 1051.209. REMITTANCE OF PENALTY AND INTEREST. (a) If
354	354	after judicial review the administrative penalty is reduced or not
355	355	imposed by the court, the court shall, after the judgment becomes
356	356	final:
357	357	(1) order that the appropriate amount, plus accrued
358	358	interest, be remitted to the person if the person paid the amount of
359	359	the penalty; or
360	360	(2) order the release of the bond in full if the
361	361	penalty is not imposed or order the release of the bond after the
362	362	person pays the penalty imposed if the person posted a supersedeas
363	363	bond.
364	364	(b) The interest paid under Subsection (a)(1) is the rate
365	365	charged on loans to depository institutions by the New York Federal
366	366	Reserve Bank. The interest shall be paid for the period beginning
367	367	on the date the penalty is paid and ending on the date the penalty is
368	368	remitted.
369	369	Sec. 1051.210. COLLECTION OF PENALTY. (a) In this section,
370	370	"reasonable expenses and costs" includes expenses incurred by the
371	371	department and the attorney general in the investigation,
372	372	initiation, or prosecution of an action, including reasonable
373	373	investigative costs, court costs, attorney's fees, witness fees,
374	374	and deposition expenses.
375	375	(b) If the person does not pay the amount of the
376	376	administrative penalty and the enforcement of the penalty is not
377	377	stayed, the department may refer the matter to the attorney general
378	378	for collection of the amount of the penalty.
379	379	(c) The department may assess reasonable expenses and costs
380	380	against a person in an administrative hearing if, as a result of the
381	381	hearing, an administrative penalty is assessed against the person.
382	382	The person shall pay expenses and costs assessed under this
383	383	subsection not later than the 30th day after the date the order of
384	384	the commissioner of state health services or the commissioner's
385	385	designee requiring the payment of expenses and costs is final. The
386	386	department may refer the matter to the attorney general for
387	387	collection of expenses and costs.
388	388	(d) If the attorney general brings an action against a
389	389	person to enforce an administrative penalty assessed under this
390	390	chapter and the person is found liable for an administrative
391	391	penalty, the attorney general may recover, on behalf of the
392	392	attorney general and the department, reasonable expenses and costs.
393	393	Sec. 1051.211. ADMINISTRATIVE PROCEDURE. A proceeding for
394	394	the assessment of an administrative penalty under this subchapter
395	395	is subject to Chapter 2001, Government Code.
396	396	[Sections 1051.212-1051.250 reserved for expansion]
397	397	SUBCHAPTER F. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
398	398	Sec. 1051.251. ENFORCEMENT PROCEEDINGS; INJUNCTION. (a)
399	399	The department, the attorney general, or the district or county
400	400	attorney for the county in which an alleged violation of this
401	401	chapter occurs shall, on receipt of a verified complaint, bring an
402	402	appropriate administrative or judicial proceeding to enforce this
403	403	chapter or a rule adopted under this chapter.
404	404	(b) The attorney general or an attorney representing the
405	405	state may initiate an action for an injunction to prohibit a person
406	406	from violating this chapter or a rule adopted under this chapter.
407	407	Sec. 1051.252. CIVIL PENALTY. In addition to any other
408	408	remedy provided by law, including injunctive relief, a court may
409	409	impose a civil penalty for a violation of this chapter or a rule
410	410	adopted under this chapter.
411	411	SECTION 3. Not later than January 1, 2010:
412	412	(1) the executive commissioner of the Health and Human
413	413	Services Commission shall adopt the rules necessary to implement
414	414	Chapter 1051, Health and Safety Code, as added by this Act; and
415	415	(2) the Department of State Health Services shall
416	416	develop the application and establish the procedures necessary to
417	417	implement Chapter 1051, Health and Safety Code, as added by this
418	418	Act.
419	419	SECTION 4. (a) Except as provided by Subsection (b), this
420	420	Act takes effect September 1, 2009.
421	421	(b) Section 1051.101 and Subchapters D, E, and F, Health and
422	422	Safety Code, as added by this Act, take effect January 1, 2010.