HBA-MPM C.S.H.B. 3067 77(R) BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 3067 By: Chisum Public Health 4/19/2001 Committee Report (Substituted) 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 (commission) and expanded its authority. Currently, the commission licenses both funeral directors and embalmers, and enforces violations of the commission's statute. The commission is subject to the Texas Sunset Act and will be abolished on September 1, 2001 unless continued by the legislature. As a result of its review of the commission, the Sunset Advisory Commission recommended a two-year continuation and several other statutory modifications. C.S.H.B. 3067 continues the commission and incorporates recommendations of the Sunset Advisory Commission. 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 (Section 651.202, Occupations Code), SECTION 1.16 (Section 651.164, Occupations Code), SECTION 1.25 (Section 651.5515, Occupations Code), and SECTIONS 3.03, 3.04, and 3.05 of this bill. ANALYSIS C.S.H.B. 3067 modifies the Occupations Code to continue the Texas Funeral Service Commission (commission) 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 the commission as a member of the Health Professions Council (council) and provides that the telephone complaint system operated by the council does not apply to the commission (Secs. 101.002 and 101.0515). The bill increases from six to seven the number of members of the commission, three of which must be licensed as both an embalmer and funeral director. The governor is required to appoint the additional member no later than November 1, 2002 (Sec. 651.051 and SECTION 3.06). C.S.H.B. 3067 requires the commission to inspect a licensed funeral establishment at least once every two years rather than once a year, and if the commission 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. The commission 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 the commission should inspect an establishment based on the risk of violation at an establishment (Sec. 651.157 and SECTION 3.05). The commission 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). C.S.H.B. 3067 authorizes the commission to issue a provisional license to certain applicants licensed in other jurisdictions and establishes criteria for a person to receive a provisional license (Sec. 651.2595). 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 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 the commission requires continuing education of licensees, the bill requires the commission to require completion of a minimum number of hours of ethics training as part of the education (Sec. 651.266). The bill authorizes the commission 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 the commission and requires the commission to notify the license holder of the revocation. The bill authorizes the license holder to appeal the commission's decision to revoke a license (Sec. 651.5025). The commission is required by rule to adopt guidelines no later than March 1, 2002 that define and summarize the violations that occur to assist the commission in maintaining consistency in determining the amount of an administrative penalty. Using those guidelines and the summary, the commission is required to maintain a chart of violations and penalties and post the guidelines on the commission's Internet site (Sec. 651.5515 and SECTION 3.04). The bill specifies the criteria the commission is required to use to determine the amount of the penalty (Sec. 651.552). C.S.H.B. 3067 requires a funeral director no later than the 30th day after the date the director uses a cemetery or crematory to register the cemetery or crematory with the commission unless the director has already registered the cemetery or crematory. The commission is required to prescribe the form used for registration. The bill requires the funeral director if necessary to update registration information with regard to cemeteries and crematories used by the director in the previous calendar year at least once yearly (Sec. 651.408). 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 651.4065). The bill includes false or misleading statements regarding cemetery or crematory services in the list of false or misleading statements that are a violation of funeral directing and embalming law (Sec. 651.455). C.S.H.B. 3067 requires the Department of Information Resources (DIR) to assist the commission in negotiating a contract for software and technical support to improve the compilation of statistics and other information using information resources. DIR is not responsible for implementing or providing the technical support to the commission regarding the software. The bill sets forth the data that must be included in the statistics and information compiled (SECTION 2.02). The bill requires the commission to also contract with the attorney general to ensure adequate access to legal services from the attorney general (SECTION 2.03). The commission 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 the commission 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 the commission'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 the commission to determine how much progress the commission has made in addressing and implementing solutions required by this bill. No later than September 1, 2002, the commission 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 the commission and transfer its function to the Texas Department of Licensing and Regulation (SECTION 3.02). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 3067 differs from the original by not expanding the Texas Funeral Service Commission's (commission) regulatory authority to include cemeteries or crematories in Texas and removing related provisions. C.S.H.B. 3067 requires a funeral director who uses a cemetery or crematory to register the cemetery or crematory with the commission within a specific time frame and update the registration as necessary. The substitute removes the provision that a funeral director's liability to the consumer is not limited because the director contracts for cemetery or crematory services (Sec. 651.408). The substitute modifies the purchase agreement for cemeteries and crematories to contain a statement that complaints may be directed to the attorney general's consumer protection division rather than the commission (Sec. 651.4065). The substitute requires the Department of Information Resources (DIR) to assist the commission in negotiating a contract for software and technical support to improve the compilation of statistics and other information using information resources, whereas the original required the commission to contract directly with the Department of Information Resources (DIR) to improve the compilation of statistics and other information using information resources. The original also specified that the contract require DIR to analyze and implement changes to meet the technology needs of the commission regarding the compiling of information. The substitute specifies that DIR is not responsible for implementing or providing the technical support to the commission regarding the software (SECTION 2.02).