HBA-GUM H.B. 3516 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3516 By: Marchant Public Health 4/20/1999 Introduced BACKGROUND AND PURPOSE Recently, the commissioners of the Texas Funeral Service Commission, which has regulated the funeral industry since 1932, voted unanimously to discharge the executive director. H.B. 3516 amends Article 4582b, V.T.C.S., to clarify the responsibilities of the commissioners in connection with the governing of the agency and shifts existing authority of the executive director to the board of the commission. This bill also clarifies language regarding fines that can be imposed and hearings before such fines become final. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority of the Texas Funeral Service Commission is modified in SECTION 12 of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subsection C, Section 1, Article 4582b, V.T.C.S., to include a transfer of a dead human body to and from an airport, a crematory, or both an airport and a crematory among the instances when a dead human body is authorized to be transferred without a licensed funeral director personally making the transfer. SECTION 2. Amends Subsection E, Section 2, Article 4582b, V.T.C.S., to require the Texas Funeral Service Commission (commission) to file annually with the governor a report on the commission's compliance with Subsections (P) (relating to the development and implementation of policies that define the responsibilities of the commission and its staff) and (Q) (relating to a written plan to provide access to a person who does not speak English or who has a disability to the commission's program) of this section (The Board). SECTION 3. Amends Subsection H, Section 2, Article 4582b, V.T.C.S., to require the commission to employ and supervise an executive director to manage the administrative affairs of the commission under Article 4582b (Funeral directing and embalming), V.T.C.S. Requires the commission to determine the terms and conditions of the employment and set the salary of the executive director. Authorizes the commission to delegate the commissioner's duties to the executive director. Deletes existing text to make a conforming change. SECTION 4. Amends Subsection K, Section 2, Article 4582b, V.T.C.S., to require all meetings, including meetings of the committees of the commissioners, rather than all meetings of the commission, to be open and public. Provides that a member of the public is not required to provide notice to the commission before appearing and speaking before the commissioner under this subsection. SECTION 5. Amends Subsection L, Section 2, Article 4582b, V.T.C.S., to authorize the commission by order to grant the executive director the power to issue subpoenas and subpoenas duces tecum in connection with a complaint under investigation by the commission. Makes a conforming change. SECTION 6. Amends Subsection O, Section 2, Article 4582b, V.T.C.S., to update statutory references concerning open meetings and administrative procedure. Makes conforming changes. SECTION 7. Amends Section 2, Article 4582b, V.T.C.S., by adding Subsection U, to prohibit a commission employee from being compensated by the commission if that employee is an officer of a state executive committee of a political party under Subchapter A (State Executive Committee), Chapter 171, Election Code. SECTION 8. Amends Section 2, Article 4582b, V.T.C.S., by adding Subsection V, to provide that if procedural or substantive advice is sought from the attorney general by the commission it must be through an opinion requested under Subchapter C (Opinions), Chapter 402, Government Code. Provides that a request for an opinion must be approved by a majority of the commissioners. SECTION 9. Amends Section 2A(d), Article 4582b, V.T.C.S., to provide that the programs required under Subsections (a) (relating to an intra-agency career ladder program) and (b) (relating to a system of annual evaluation) along with a policy statement prepared under Subsection (c) (relating to the implementation of a program of equal employment opportunity) must cover an annual period, be updated at least annually, and be filed with the governor's office. SECTION 10. Amends Subsection F, Section 3, Article 4582b, V.T.C.S., to require, rather than authorize, the commission to waive a license requirement for an applicant with a valid license from another state, if the applicant meets the requirements established under this subsection, rather than from another state having license requirements substantially equivalent to those of this state. Provides that an applicant for a reciprocal license must provide proof that the license is in good standing; that the applicant has practiced under the license for at least one year in the state that issued the license and has graduated from an accredited college of mortuary science; and pass a written examination of not more than 50 questions on applicable state laws and commission rules. Requires the commission to administer the written examination at each regularly scheduled meeting of the commission. SECTION 11. Amends Subsection H, Section 3, Article 4582b, V.T.C.S., to delete existing text authorizing the commission to assess an administrative penalty without a hearing if the penalty is assessed in the manner provided by Section 6G (Administrative Penalty), Article 4582b, V.T.C.S. Authorizes the commission to refuse after, rather than without, a hearing to license a person or to permit a person to serve as a provisional licensee if the person has been found to have violated this Act or a rule adopted under it. Deletes existing text authorizing a person whose license or provisional license application is refused under this subsection (regarding the employment of inspectors, clerical and technical assistants, legal counsel, and an executive director) to appeal the decision by requesting a hearing by a specified date. Updates a statutory reference concerning prepaid funeral services. Makes a nonsubstantive change. SECTION 12. Amends Subsection I, Section 3, Article 4582b, V.T.C.S., to authorize the commission to issue such rules and regulations as may be necessary, rather than necessary or desirable, to effect the intent of the provisions of this section (Licenses-funeral directors and embalmers). SECTION 13. Amends Section 4, Article 4582b, V.T.C.S., as follows: Sec. 4. FUNERAL ESTABLISHMENTS. (A) Makes no change. (B) Makes no change. (C) Provides that an embalming service, whether provided at a funeral establishment or other embalming facility licensed under this Act, must comply with this Act or a rule adopted under it. Makes conforming changes. (D) Authorizes the commission to exempt a funeral establishment from the requirements of Subsection C.1.(D) (relating to a preparation room for embalming services) of this section (Licenses-funeral directors and embalmers) if the majority owner or designated agent of record of a funeral establishment submits a written petition to the commission requesting an exemption and stating certain specified information and the commission determines that the criteria in Subsection (A) (relating to the criteria in a written petition to the commission requesting an exemption by the majority owner or designated agent of record of a funeral establishment) of this subsection have been met. Requires the executive director to notify the petitioner of the commission's decision. Provides that the exemption remains in effect until the establishment is no longer located within 50 miles of a facility at which embalming services are performed, or an embalming service has been performed at the establishment. (E) Redesignated from existing Subsection (D). Deletes existing text authorizing the commission to assess an administrative penalty without a hearing if the penalty is assessed as provided by Section 6G, Article 4582b. Authorizes the commission to refuse after, rather than without, a hearing to license an establishment if an owner of the establishment has been found to have committed an act listed in Subsection (B) (relating to the issuance of an establishment license). Deletes text authorizing an establishment whose license is refused under this subsection to appeal the decision by requesting a hearing not later than a specified date. Authorizes a funeral establishment alleged to have violated this section to waive the right to a hearing as provided by Section 6C, Article 4582b. Provides that a violation of Article 4582 does not include solicitation made pursuant to a permit issued under Subchapter C, Chapter 154, Finance Code, rather than Article 548b, V.T.C.S. Provides that a violation of a funeral establishment, a person acting on behalf of a funeral establishment or a person directly or indirectly connected with a funeral establishment of Chapter 154, Finance Code, rather than Article 548b, or a rule adopted under that chapter, rather than article. (F) Redesignated from existing Subsection (E). (G) Redesignated from existing Subsection (F). (H) Redesignated from existing Subsection (G). (I) Redesignated from existing Subsection (H). (J) Redesignated from existing Subsection (I). Requires the commission, the Texas Department of Insurance, rather than the Board of Insurance, and the Banking Department of Texas to adopt a joint memorandum of understanding relating to prepaid funeral services and transactions as provided by this subsection. (K) Redesignated from existing Paragraph (J). SECTION 14. Amends Subsection B, Section 5, Article 4582b, V.T.C.S., to provides that all rules adopted by the commission are subject to Chapter 2001 (Administrative Procedure), Government Code, rather than Article 6252-13a, which was repealed by Acts of the 73rd Legislature, regular session, 1993. SECTION 15. Amends Section 6C, Article 4582b, V.T.C.S., as follows: Sec. 6C. New title: APPLICATION OF ADMINISTRATIVE PROCEDURE ACT. (a) Entitles a person who is denied a license or provisional license by the commission to a hearing before the commission in accordance with Chapter 2001 (Administrative Procedure), Government Code, rather than Article 6252-13a. (b) Provides that a proceeding conducted by the commission relating to the denial of a license or provisional license, the suspension or revocation of a license, the imposition of an administrative penalty, rather than the imposition of an administrative penalty other than an administrative penalty assessed without a hearing as provided by Section 6G, Article 4582b, or a reprimand is governed by the Chapter 2001 (Administrative Procedure), Government Code, rather than Article 6252-13a. (c) Requires, rather than authorizes, a proceeding brought under Subsection (b) of this section to be held before an administrative law judge employed by the State Office of Administrative Hearings, rather than before a hearings officer. Makes conforming changes. (d) Makes no change. (e) Authorizes a funeral establishment alleged to have violated Article 4582b to waive the right to a hearing as provided by this section by written notification to the commission. SECTION 16. Amends Sections 6D(c), (d), and (f), Article 4582b, V.T.C.S., as follows: (c) Deletes existing text prohibiting the commission from notifying the parties of the status of the complaint if the notice would jeopardize an undercover investigation. (d) Provides that the information file is public information, except for information obtained after an inspection or an investigation of a complaint, which may not be made public. Makes conforming changes. (f) Adds language to provide that a person serving the commission to investigate complaints of consumer interest and other complaints must have been previously employed by a local, state, or federal law enforcement agency as an investigator for at least 12 months. SECTION 17. Amends Section 6F, Article 4582b, V.T.C.S., to provide that the commissioners and the employees of the commission are subject to the provisions of Chapter 2001 (Administrative Procedure), Government Code, rather than Article 6252-13a. SECTION 18. Amends Section 6G, Article 4582b, V.T.C.S., as follows: Section 6G. ADMINISTRATIVE PENALTY. (a) Deletes existing text requiring the commission, if an administrative penalty is assessed after a hearing conducted under Section 6C (Administrative Procedure and Texas Register Act), Article 4582b, to follow the procedures described in Subsections (e) through (h) of this section. Makes a conforming change. (b) Prohibits the commission from assessing an administrative penalty that exceeds $10,000 for any single complaint. (c)-(h) Deletes the entire existing text of these subsections, relating to a preliminary report required to be issued by the commission upon concluding that a violation has occurred; the manner by which a hearing may be requested; and the provisions regarding payment and collection of the administrative penalty. SECTION 19. Amends Section 6H, Article 4582b, V.T.C.S., to authorize the commission to issue a letter of reprimand after a hearing conducted in the manner provided by Section 6C, Article 4582b, or without a hearing if the person or establishment waives a hearing, rather than as provided by this section. Deletes Subsections (b) and (c) to make a conforming change. SECTION 20. Amends Section 6I, Article 4582b, V.T.C.S., to require the commission or an administrative law judge employed by the State Office of Administrative Hearings, rather than a hearings officer, to review each disciplinary proceeding to determine whether the licensee has committed the same type of violation on one or more previous occasions. Makes conforming changes. SECTION 21. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 22. Emergency clause.