HBA-MPM H.B. 3067 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3067
By: Chisum
Public Health
7/18/2001
Enrolled
        


BACKGROUND AND PURPOSE 

The legislature created the State Board of Embalming in 1903 to license and
regulate embalmers.  In 1987, the legislature changed the board's name to
the Texas Funeral Service Commission (TFSC) and expanded its authority.
TFSC licenses both funeral directors and embalmers, and enforces violations
of TFSC's statute.  TFSC is subject to the Texas Sunset Act and would have
been abolished on September 1, 2001 without continuation by the
legislature.  As a result of its review of TFSC, the Sunset Advisory
Commission recommended a two-year continuation and several other statutory
modifications.  House Bill 3067 continues TFSC and incorporates
recommendations of the Sunset Advisory Commission, including the expansion
of the TFSC's regulatory authority to include cemeteries and crematories. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Funeral Service Commission in
SECTION 1.11 (Section 651.157, Occupations Code),  SECTION 1.12 (Sections
651.1575 and 651.202, Occupations Code), SECTION 1.17 (Section 651.164,
Occupations Code), SECTION 1.23 (Section 651.4065, Occupations Code),
SECTION 1.29 (Section 651.5515, Occupations Code), SECTION 1.32 (Section
651.653, Occupations Code), and SECTIONS 3.03, 3.04, and 3.05 of this bill. 

ANALYSIS

House Bill 3067 modifies the Occupations Code to continue the Texas Funeral
Service Commission (TFSC) until September 1, 2003, and to set forth
standard Sunset Advisory Commission recommendations regarding member
training, training for employees on the state incentive program, public
representation on the board, conflicts of interest, policy implementation
by the board, equal employment, and complaint files (Secs. 651.002,
651.0511, 651.012, 651.052, 651.053, 651.104, 651.107, and 651.203). 
       
The bill adds TFSC as a member of the Health Professions Council (council)
and provides that the telephone complaint system operated by the council
does not apply to TFSC (Secs. 101.002 and 101.0515). The bill increases
from six to seven the number of members of TFSC by adding one registered
cemetery owner or operator. The governor is required to appoint the
additional member no later than November 1, 2002 (Sec. 651.051 and SECTION
3.06). 

H.B. 3067 requires TFSC to inspect a licensed funeral establishment at
least once every two years rather than once a year, and if TFSC finds the
establishment to be in violation of law governing funeral directing and
embalming, death records, or solid waste disposal, to inspect the
establishment annually until it is determined that the establishment is
free of violations.  TFSC is required to study the risk-based assessment
methods used by the Texas Department of Health and the Texas Department of
Licensing and Regulation and by rule establish criteria no later than March
1, 2002 regarding when TFSC should inspect an establishment based on the
risk of  violation at an establishment (Sec. 651.157 and SECTION 3.05).
TFSC is required to adopt rules no later than March 1, 2002 concerning
complaints filed that allow for a hearing process, the dismissal of a
complaint, and related procedures (Sec. 651.202 and SECTION 3.03). 

 H.B. 3067 authorizes TFSC to issue a provisional license to certain
applicants licensed in another jurisdiction and establishes criteria for a
person to receive a provisional license (Sec. 651.2595). The bill
authorizes TFSC by rule to adopt a system under which registrations expire
(Sec. 651.164).  The bill prohibits a person whose license has expired from
engaging in activities that require a license until the license has been
renewed (Sec. 651.165).   

The bill provides that a funeral director's liability to the customer is
not limited because the director contracts for cemetery or crematory
services (Sec. 651.408). 

The bill provides that a person whose license has been expired more than 90
days but less than one year rather than five years may renew the license by
paying a fee that is double the amount of the normally required fee.  The
bill prohibits a person whose license has been expired for one year or more
rather than five years or more from renewing the license.  The bill
authorizes an individual who was licensed in Texas but has moved to another
state and is currently licensed and has been in practice in the other state
for two years preceding the date of application to obtain a new license in
Texas without reexamination, and requires the person to pay a fee that is
double the normally required renewal fee for the license (Sec. 651.165). If
TFSC requires continuing education of licensees, the bill requires TFSC to
require completion of a minimum number of hours of ethics training as part
of the education (Sec. 651.266).   

The bill authorizes TFSC to revoke a license without a hearing if the
license holder has been convicted of a felony related to the practice of
embalming, funeral directing, or another activity regulated by TFSC and
requires TFSC to notify the license holder of the revocation.  The bill
authorizes the license holder to appeal TFSC's decision to revoke a license
(Sec. 651.5025).  TFSC is required by rule to adopt guidelines no later
than March 1, 2002 that define and summarize the violations that occur to
assist TFSC in maintaining consistency in determining the amount of an
administrative penalty.  Using those guidelines and the summary, TFSC is
required to maintain a chart of violations and penalties and post the
guidelines on TFSC's Internet site (Sec. 651.5515 and SECTION 3.04). The
bill specifies the criteria TFSC is required to use to determine the amount
of the penalty (Sec. 651.552). 

H.B. 3067 expands TFSC's regulatory authority to include crematories and
cemeteries.  The bill authorizes TFSC to inspect a cemetery or crematory
only if TFSC receives a complaint (Sec. 651.1575).  The bill prohibits a
person from conducting a cemetery or crematory in Texas unless the person
who is the owner or operator registers with TFSC, although a cemetery or
crematory can be owned by a person who is not registered with TFSC.  The
bill establishes a procedure for a person to register with TFSC as an
operator of a cemetery or crematory.  TFSC is required by rule to establish
the registration fee (Sec. 651.653). TFSC is required to mail written
notice to a registrant of the impending expiration of a registration within
30 days of the date the registration expires and provides penalties for
registrants who fail to renew their registration in a timely manner (Sec.
651.655).  On request by TFSC, the Texas Department of Banking is required
to provide TFSC a list of perpetual care cemeteries.  The bill requires
TFSC to register each perpetual care cemetery on the list, and provides
that the perpetual care cemetery is not required to pay a registration fee
(Sec. 651.654).  The bill sets forth provisions regarding retail price
lists and purchase agreements for cemeteries and crematories that are
similar to those for funeral establishments (Secs. 651.4055 and 651.4056). 

H.B. 3067 requires TFSC to contract with the Department of Information
Resources (DIR) to improve the compilation of statistics and other
information using information resources.  The contract shall require DIR to
analyze and implement changes to meet the technology needs of TFSC
regarding the compiling of information.  The bill sets forth the data that
must be included in the statistics and information compiled (SECTION 2.02).
The bill requires TFSC to also contract with the attorney general to ensure
adequate access to legal services from the attorney general (SECTION 2.03).
TFSC is required to develop a plan no later than December 1, 2001 that
details the manner in which it will implement the requirements of the above
contracts (SECTION 2.04).  The bill requires TFSC to report quarterly on
the status of its efforts to the Sunset Advisory Commission and a
six-member task force created for the purpose of reviewing TFSC's plan and
monitoring its implementation of changes recommended by the plan.  The bill
sets forth the composition of the task force  (SECTIONS 2.05 and 2.06). 
 
The bill repeals provisions in the Occupations Code regarding funeral
directing and embalming that relate to renewal of provisional and funeral
establishment licenses, set a uniform expiration date for licenses, and
authorize two commissioners, before a hearing is conducted, to participate
in an informal conference relating to a matter to be considered in a
hearing relating to the denial, suspension, or revocation of a license, or
the imposition of a civil penalty (SECTION 3.01). 

The bill authorizes the Sunset Advisory Commission to limit the scope of
its review of TFSC to determine how much progress TFSC has made in
addressing and implementing solutions required by this bill.  No later than
September 1, 2002, TFSC is required to report to the Sunset Advisory
Commission on the status of its progress, and if the Sunset Advisory
Commission determines that the progress is inadequate, it is required to
consider whether to recommend that the legislature abolish TFSC and
transfer its function to the Texas Department of Licensing and Regulation
(SECTION 3.02). 

EFFECTIVE DATE

September 1, 2001.