HBA-MPM C.S.H.B. 2756 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2756 By: Pitts Public Health 4/26/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Results of a review by the Regulatory Subcommittee of the House Appropriations Committee found that the Funeral Services Commission (commission) met only 20 percent of its performance measures, has had multiple executive directors in recent years, and has a troubled history extending over at least three decades. The subcommittee expressed concern about the commission's ability to function effectively without undue influence by the funeral industry. As a result of testimony before the House Appropriations Committee, the commission did not receive funding for the upcoming biennium. C.S.H.B. 2756 abolishes the commission and transfers its powers and duties to the Texas Department of Health (TDH). This bill also addresses an advisory committee which will regulate the industry under the auspices of TDH and sets forth the composition of the committee. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority previously delegated to the Funeral Services Commission is transferred to the Texas Department of Health in SECTION 1 (Section 1, Article 4582b, V.T.C.S.) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 1, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), by amending Subsections E, F, H, T, and W, and adding Subsections X and Y, as follows: E. Redefines the term "provisional licensee" as a person engaged in learning the practice of funeral directing and/or embalming under the instruction, direction, and personal supervision of a duly licensed funeral director and/or embalmer of and in the State of Texas in accordance with the provisions of this Act, and having been duly issued a provisional license by the Texas Department of Health (department), rather than the Funeral Services Commission (commission). F. Requires the Texas Board of Health (board), by rule, rather than the commission, by rule, to define the terms of employment of a provisional licensee. H. Makes conforming changes. T. Makes conforming changes. W. Defines "board" as the Texas Board of Health. X. Defines "Commissioner" as the commissioner of public health. Deletes definition of "commission." Y. Defines "department" as the Texas Department of Health. SECTION 2. Amends Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), by adding Section 2B, as follows: Sec. 2B. ADVISORY COMMITTEE. (a) Defines "advisory committee" (committee) as the funeral services advisory committee for purposes of this section. (b) Establishes the committee to provide advisory services to the board. Sets forth the committee's composition. Requires the board to appoint the committee members, four of whom must be public members, and two of whom must hold a license as both a funeral director and an embalmer. Provides that the two licensed members are not qualified to serve if they work for the same company, nor is a person qualified to serve as a public member of the committee under certain conditions. (c) Provides that failure of a member to satisfy the requirements adopted under this section for membership on the advisory committee constitutes the vacancy of that member's position. Requires a vacancy to be filled in the same manner as the original appointment. Provides that the appointed member serves for the remainder of the vacated term. (d) Provides that a committee member serves a three-year term. Provides that a member is not entitled to compensation, however, entitles the member to reimbursement for actual and necessary expenses incurred in performing duties as a committee member. Makes this provision subject to any applicable limitation on reimbursement provided by the General Appropriations Act. (e) Requires the committee to elect a public member to serve as presiding officer. Requires the committee to meet at the call of the presiding officer, but at least three times yearly. (f) Requires the committee to make recommendations to the board regarding the licensing and regulation of funeral directors, embalmers, funeral establishments, and other persons engaged in business in this state in the funeral industry. (g) Provides that the committee is not subject to Chapter 2110 (State Agency Advisory Committees), Government Code. SECTION 3. Amends Subsection A, Section 3, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), as follows: A. Makes conforming changes. SECTION 4. Amends Subdivisions (2) and (3), Subsection B, Section 3, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), as follows: (2) Makes conforming changes. (3) Makes conforming changes. SECTION 5. Amends Subdivisions (2) and (3), Subsection C, Section 3, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), as follows: (2) Makes conforming changes. (3) Makes conforming changes. SECTION 6. Amends Subsections D, E, F, H, I, and J, Section 3, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), as follows: D. Deletes text authorizing the commission to mandate that an applicant appear before at least one member of the commission for approval of the person's application, as well as text specifying that the application is subject to review by the commission. Makes conforming changes. E. Makes conforming changes. F. Requires a person's application to be accompanied by an affidavit made by the appropriate authority, rather than by the Chairman or Secretary of the commission which issued the license, or by a duly constituted registration officer of the state, country, or territory by which the certificate or license was granted, and on which the application for registration in Texas is based, reciting that the accompanying certificate or license has not been canceled, suspended, or revoked. and that the statement of qualifications made in the application for a license in Texas is true and correct. Makes conforming changes. H. Provides that a violation of Chapter 154 (Prepaid Funeral Services), Finance Code, rather than Section 1, 5, or 9, Chapter 512, Acts of the 54th Legislature, Regular Session, 1955 (Article 548b, V.T.C.S.), or a rule adopted under that chapter constitutes a violation of this Act. Makes conforming changes. I. Makes conforming changes. J. Makes conforming changes. SECTION 7. Amends Section 4, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to authorize the department to refuse to issue an establishment license to an individual, partnership, or corporation if the individual, a partner, or an officer or director of the corporation has violated this Act, a rule adopted under this Act, or Chapter 154, Finance Code, rather than Chapter 512, Acts of the 54th Legislature, Regular Session, 1955 (Article 548b, V.T.C.S.). Requires the Texas Department of Insurance, rather than the State Board of Insurance, in addition to the department and the Banking Department of Texas to adopt a joint memorandum of understanding relating to certain prepaid funeral services and transactions. Deletes text requiring the commission and the department to adopt a joint memorandum of understanding outlining the responsibilities of each entity with respect to funeral establishment requirements, certain agency procedures, and coordination of inspection and enforcement efforts. Further deletes text requiring these entities to review and update the memorandum no later than the last month of each state fiscal year, and text requiring the entities to adopt the memorandum and all revisions by rule. Makes conforming changes. SECTION 8. Amends Subsection (c), Section 4A, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 9. Amends Section 5, (Article 4582b, V.T.C.S.), Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to provide that all rules adopted by the board are subject to Chapter 2001 (Administrative Procedure), Government Code, rather than the Administrative Procedure and Texas Register Act (Article 6252-13a, V.T.C.S.). Makes conforming changes. SECTION 10. Amends Section 6, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 11. Amends Section 6B, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 12. Amends Section 6C, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), as follows: Sec. 6C. New title: ADMINISTRATIVE PROCEDURE ACT. Deletes "Texas Register" from title. Makes conforming changes. SECTION 13. Amends Subsections (a)-(f), Section 6D, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 14. Amends Section 6E, (Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 15. Amends Section 6F, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 16. Amends Subsections (a)-(g), Section 6G, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 17. Amends Section 6H, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 18. Amends Section 6I, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 19. Amends Subsection (b), Section 7, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 20. Amends Section 9, Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953), to make conforming changes. SECTION 21. Repealer: Sections 2 (Texas Funeral Service Commission) and 2A (Executive Director; Biennial Report), Article 4582b, V.T.C.S. (Chapter 251, Acts of the 53rd Legislature, Regular Session, 1953). SECTION 22. Effective date: September 1, 1999. Abolishes the Funeral Services Commission and transfers its powers and duties to the Texas Department of Health on the effective date of this Act. Provides that the terms of office of the members of the commission expire on the effective date of this Act. Specifies that a reference in law to the commission means the department or the Texas Board of Health, as applicable, and that a reference to the executive director of the commission means the commissioner of public health. Assigns the department all the powers and duties of the commission provided by law. Provides that the department has all the property, funds, rules, unspent appropriations, documents, rights, and obligations of the commission, except to the extent laws governing the commission's powers and duties are amended by this Act. Requires the department, on the effective date of this Act, to employ at least seven full-time employees who were employed by the commission on the day immediately before the effective date of this Act. Provides that at least five of those employees must have experience in licensing programs and investigations operated by the commission before the effective date of this Act. Continues the rules, policies, procedures, and decisions of the commission in effect as those of the board until superseded by rule or other appropriate action of the board. Provides that the validity of a rule, form, or procedure adopted, contract or acquisition made, proceeding begun, obligation incurred, right accrued, or other action taken by or in connection with the authority of the commission before it is abolished is not affected by this Act, and that to the extent those actions continue to have any effect on or after September 1, 1999, they are considered actions of the department. Requires the members of the committee created by this Act to be appointed no later than December 31, 1999. SECTION 23. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 2756 differs from the original bill in SECTION 2 of the original, which amends Article 4582b, V.T.C.S., by adding Section 2B. The substitute modifies proposed Section 2B(b) (Advisory Committee) to require the Texas Board of Health (board) to appoint the committee members, four of whom must be public members, and two of whom must hold a license as both a funeral director and an embalmer. The original bill required the board to appoint the members of the committee, three of whom must hold licenses under this Act, only one of whom may be an owner of a funeral establishment, and two whom must be public members. The substitute further provides that the two licensed members are not qualified to serve if they work for the same company, nor is a person qualified to serve as a public member of the committee under certain conditions. The substitute adds new Subsection (c) to proposed Section 2B, to provide that failure of a member to satisfy the requirements adopted under this section for membership on the advisory committee constitutes the vacancy of that member's position; to require a vacancy to be filled in the same manner as the original appointment; and provide that the appointed member serves for the remainder of the vacated term. Subsections (d)-(g) of the substitute are redesignated from Subsections (c)-(f) of the original. The substitute modifies proposed Subsection (e) (redesignated from proposed Subsection (d)), to require the advisory committee to elect a public member to serve as presiding officer.