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.