HBA-GUM C.S.H.B. 3516 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 3516 By: Marchant Public Health 4/27/1999 Committee Report (Substituted) 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. C.S.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. The substitute 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 8 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 A(1), Section 2, Article 4582b, V.T.C.S., to provide that the Texas Funeral Service Commission (commission) consists of six, rather than nine, commissioners. Provides that two commissioners must hold a license as both an embalmer and a funeral director, rather than providing that four commissioners must be licensed embalmers or funeral directors, in this state. Provides that four, rather than five, commissioners must be representatives of the general public. Makes conforming and nonsubstantive changes. SECTION 3. Amends Subsection A(2), Section 2, Article 4582b, V.T.C.S., to provide that one-third of the six-year terms of the commissioners expire in each odd-numbered year. Creates an exception to a commissioner's ineligibility to serve for more than one full term of service, to authorize a commissioner appointed to fill an unexpired term with less than three years remaining in the unexpired term to be reappointed to the commission for one full term of service. SECTION 4. Amends Subsection A(5), Section 2, Article 4582b, V.T.C.S., to provide that one of the two commissioners authorized to participate in an informal conference relating to a case that awaits a hearing must hold a license as both a funeral director and embalmer, rather than be a licenced funeral director or embalmer. Prohibits a commissioner who has a personal or private interest, or is employed by an entity with a personal or private interest in a measure, proposal, or decision pending before the commission, from voting or participating in an informal conference relating to that interest. SECTION 5. Amends Subsection A(6), Section 2, Article 4582b, V.T.C.S., to provide that a violation of this subdivision's prohibition against certain corporate officers or employees serving on the commission which occurs after a member is appointed constitutes a vacancy of each of those member's positions, as of the date of the completion of the merger or other agreement. Requires the governor to fill a vacancy under this subdivision as soon as practicable, and provides that the appointed member serves for the remainder of the vacated term. SECTION 6. Amends Subsection A(7), Section 2, Article 4582b, V.T.C.S., to delete existing text prohibiting a person from acting as the general counsel to the commission if the person is required to register as a lobbyist. SECTION 7. Amends Subsection D, Section 2, Article 4582b, V.T.C.S., to require the governor to designate a public member of the commission, rather than one commissioner, as the presiding officer, rather than the chairman, of the commission to serve in that capacity at the pleasure of the governor. Requires the commission to elect, as provided by this subsection, a public member, rather than a vice chairman and secretary from the commissioners, to serve as assistant presiding officer as provided by this subsection. Makes conforming changes. SECTION 8. Amends Subsection E, Section 2, Article 4582b, V.T.C.S., to require the 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 9. 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 at an amount not to exceed the maximum salary for the position under the General Appropriations Act. Authorizes the commission to delegate the commissioner's duties to the executive director. Requires the attorney general to designate at least one employee of that office to advise and represent the commission in legal proceedings. Prohibits the commission from employing legal counsel except as provided by Section 402.0212 (Provision of Legal Services - Outside Counsel), Government Code. Deletes existing text to make a conforming change. SECTION 10. 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 11. 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 12. Amends Subsection O, Section 2, Article 4582b, V.T.C.S., to update statutory references concerning open meetings and administrative procedure. Provides that the commission's duties under Chapter 551, Government Code, include the requirement to prepare and maintain the minutes of each open meeting under that chapter. Makes conforming changes. SECTION 13. Amends Section 2, Article 4582b, V.T.C.S., by adding Subsection V, to provide that a request for an opinion under Subchapter C (Opinions), Chapter 402, Government Code, must be approved by a majority of the commissioners. SECTION 14. Amends Subsection T, Section 2, Article 4582b, V.T.C.S., to make a conforming change. SECTION 15. 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 16. 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 having license requirements substantially equivalent to those of this state, and to authorize the commission to waive any license requirement for an applicant with a license from another state that does not have license requirements substantially equivalent to those of this state, if the applicant meets the requirements established under this subsection. Requires the commission to conduct a criminal background check on each applicant. Provides that an applicant is not eligible for a reciprocal license if the applicant has been convicted of a misdemeanor involving moral turpitude or a felony within the previous ten years. Provides that an applicant for a reciprocal license must provide proof that the applicant satisfies certain specified conditions. SECTION 17. Amends Subsection H, Section 3, Article 4582b, V.T.C.S., to authorize the commission to assess an administrative penalty before, rather than without, a hearing or a waiver of a right to a hearing, if the penalty is assessed in the manner provided by Section 6G (Administrative Penalty), Article 4582b, V.T.C.S. Updates a statutory reference concerning prepaid funeral services. Makes conforming and nonsubstantive changes. SECTION 18. 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 19. Amends Section 4, Article 4582b, V.T.C.S., as follows: Sec. 4. FUNERAL ESTABLISHMENTS. (A) Makes no change. (B) Updates a statutory reference. (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). Authorizes the commission to assess an administrative penalty before, rather than without, a hearing or a waiver of a right to a hearing if the penalty is assessed as provided by Section 6G, Article 4582b, V.T.C.S. Authorizes the commission to refuse before, 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). 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 by 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, is a violation of this Act. (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 20. 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 21. 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, or a reprimand other than an administrative penalty assessed before, rather than without, a hearing or waiver of a hearing as provided by Section 6G, Article 4582b, 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 22. Amends Sections 6D(d) and (f), Article 4582b, V.T.C.S., as follows: (d) Deletes Subdivisions (1) and (2) providing that the information file is public information, except for information obtained after investigating a complaint, or is not public. Makes conforming changes. (f) Deletes existing text prohibiting a person who is subject to regulation under this article from serving as an investigation, setting forth the provisions for a person contracted to serve as an investigator. Makes a conforming change. SECTION 23. 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 24. Amends Sections 6G (c) and (e), Article 4582b, V.T.C.S., as follows: (c) Provides that until an order has been entered after a hearing on the possible violation, the amount to be assessed may be disclosed only to the person or establishment charged with the violation, unless that person or establishment has waived the right to a hearing or paid the amount to the commission. (e)(1) Adds language to authorize the person or establishment charged to, not later than the 30th day after the date the order is sent or a motion for rehearing is denied, contest either the amount of the penalty or the fact of the violation. Prohibits the person or establishment, if the penalty that the person or establishment with wishes to contest is greater than $,5000, to, not later than a specified date, post a supersedeas bond in a form approved by the commission for the amount of the penalty, or if the person or establishment cannot pay the penalty or file the bond, files an affidavit in the manner required for a person who cannot afford to file security for costs, subject to the right of the commission to contest the affidavit as provided by those rules. Deletes existing text requiring the person or establishment to remit the assessed amount to the commission for deposit in an escrow account not later than a specified date. (2) Requires the court to order, when the court's judgement becomes final, the release of the bond if the person or establishment gave a supersedeas bond, if, after judicial review, it is determined that no violation occurred. Requires the court if the person or establishment gave a supersedeas bond and the amount of the penalty is reduced to order the release of the bond after the person or establishment pays the reduced amount. Deletes existing text requiring the commission to remit the appropriate amount to the person or establishment charged with the violation not later than a specified date. SECTION 25. 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 26. 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 27. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 28. (a) Provides that the terms of the members of the commission serving on the effective date of this Act expire, and that policymaking body as it existed immediately before the effective date of this Act is abolished on the effective date of this Act. (b) Requires the governor, as soon as practicable after the effective date of this Act, to make appointments to the commission to accomplish the membership plan for the commission established by Section 2, Article 4582b, V.T.C.S. Provides that this section does not prohibit a person who is a member of the commission on the effective date of this Act, and who possesses the qualifications required under Section 2, Article 4582b, V.T.C.S., as amended by this Act, from being reappointed to the commission under this subsection. (c) Sets forth the terms of the members whom the governor is required to appoint. SECTION 29. Amends Subsection C, Section 2, Article 4582b, V.T.C.S., to require the commission to meet in Austin, Texas in regular session at least once each calendar quarter, rather than two times, for transaction of business. Makes conforming changes. SECTION 30. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute adds new SECTION 2 and redesignates SECTION 2 of the original to SECTION 8 of the substitute. New SECTION 2 amends Subsection A(1), Section 2, Article 4582b, V.T.C.S., to modify the composition of the Texas Funeral Service Commission (commission). For a complete analysis please see the Section-by-Section Analysis in this document. The substitute adds new SECTION 3 and redesignates SECTION 3 of the original to SECTION 9 of the substitute. New SECTION 3 amends Subsection A(2), Section 2, Article 4582b, V.T.C.S., to set forth the expiration dates of the terms of the commissioners, and create an exception to a commissioner's inability to serve for more than one full term of service, by authorizing a commissioner appointed to fill an unexpired term with less than three years remaining in the unexpired term to be reappointed to the commission for one full term of service. The substitute adds new SECTION 4 and redesignates SECTION 4 of the original to SECTION 10 of the substitute. New SECTION 4 amends Subsection A(5), Section 2, Article 4582b, V.T.C.S., to provide that one of the two commissioners authorized to participate in an informal conference relating to a case that awaits a hearing must hold a license as both a funeral director and embalmer, and to prohibit a commissioner who has a personal or private interest, or is employed by an entity with a personal or private interest in a measure, proposal, or decision pending before the commission, from voting or participating in an informal conference relating to that interest. The substitute adds new SECTION 5 and redesignates SECTION 5 of the original to SECTION 11 of the substitute. New SECTION 5 amends Subsection A(6), Section 2, Article 4582b, V.T.C.S., to provide that a violation of this subdivision that occurs after a member is appointed constitutes a vacancy, which the governor is required to fill, of each of those member's positions, as of the date of the completion of agreement, and provides that the appointed member serves for the remainder of the vacated term. The substitute adds new SECTION 6 and redesignates SECTION 6 of the original to SECTION 12 of the substitute. New SECTION 6 amends Subsection A(7), Section 2, Article 4582b, V.T.C.S., to delete existing text prohibiting a person from acting as the general counsel to the commission if the person is required to register as a lobbyist. The substitute adds new SECTION 7 and deletes SECTION 7 of the original, which amended Section 2, Article 4582b, V.T.C.S., to add 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. New SECTION 7 amends Subsection D, Section 2, Article 4582b, V.T.C.S., to require the governor to designate a public member of the commission as the presiding officer, rather than one commissioner as the chairman, of the commission, and require the commission to elect a public member, rather than a vice chairman and secretary from the commissioners, to serve as assistant presiding officer. In SECTION 8, the substitute makes a nonsubstantive change. In SECTION 9, the substitute sets forth the maximum salary of the executive officer. SECTION 9 also requires the attorney general to designate at least one employee to advise and represent the commission in legal proceedings, and prohibits the commission from employing legal counsel except as provided by Section 402.0212 (Provision of Legal Services - Outside Counsel), Government Code. The substitute deletes existing text to make a conforming change. In SECTION 12, the substitute provides that the commission's duties under Chapter 551, Government Code, include the requirement to prepare and maintain the minutes of each open meeting. In SECTION 13, the substitute makes a nonsubstantive change. The substitute adds SECTION 14 and redesignates SECTION 14 of the original to SECTION 20 of the substitute. New SECTION 14 amends Subsection T, Section 2, Article 4582b, V.T.C.S., to make a conforming change. The substitute redesignates SECTIONS 9 and 10 of the original to SECTIONS 15 and 16 of the substitute. In SECTION 16, the substitute reinstates existing text requiring the commission to waive any license requirement for an applicant with a license from another state having license requirements substantially equivalent to those of this state, which was deleted in the original. The substitute authorizes the commission to waive a license requirement for an applicant with a license from another state that does not have license requirements substantially equivalent to those of this state. The substitute also differs from the original in SECTION 16 requiring the commission to conduct a criminal background check on each applicant, and provides that an applicant is not eligible if the applicant has been convicted of a misdemeanor involving moral turpitude or a felony within the 10 years preceding the date of the application. SECTION 16 of the substitute also provides that the applicant for a reciprocal license must provide certain specified proof relating to a license issued by a state that does not have license requirements substantially equivalent to those of this state. In SECTION 17, the substitute authorizes the commission to assess an administrative penalty before, rather than without, a hearing or a waiver of a right to a hearing, if the penalty is assessed in a specified manner. The substitute does not address existing text, which the original deleted, authorizing a person whose license or provisional license application is refused to appeal the decision by requesting a hearing by a specified date. The substitute also modifies SECTION 11 of the original to make conforming changes. The substitute redesignates SECTIONS 12 and 13 of the original to SECTIONS 18 and 19 of the substitute. In SECTION 19, the substitute updates a statutory reference, and specifies that a funeral establishment may be exempted from having a preparation room if the establishment is located within 50 miles of a facility, if the facility is owned by the establishment requesting the exemption. The substitute also differs from the original in SECTION 19 by amending, rather than deleting, existing text to authorize the commission to assess an administrative penalty before, rather than without, a hearing or a waiver of a right to a hearing if the penalty is appropriately assessed. The substitute also modifies the original to authorize the commission to refuse before, rather than after, a hearing or a waiver of a right to a hearing to license an establishment under a specified condition. The substitute reinstates existing text, which was deleted in the original, regarding authorizing an establishment whose license is refused to appeal the decision by requesting a hearing not later than a specified date. The substitute redesignates SECTIONS 14 and 15 of the original to SECTIONS 20 and 21 of the substitute. In SECTION 21, the substitute reinstates and amends existing language providing that a proceeding conducted by the commission relating to a reprimand other than an administrative penalty assessed after, rather than before, a hearing or waiver of a hearing as provided by Section 6G, Article 4582b, is governed by the Chapter 2001 (Administrative Procedure), Government Code, rather than Article 6252-13a. The substitute also differs from the original in SECTION 21 by making conforming changes, and authorizing a funeral establishment alleged to have violated Article 4582b to waive the right to a hearing by written notification to the commission. The substitute redesignates SECTION 16 of the original to SECTION 22 of the substitute. The substitute reinstates existing text relating to the notification to the parties to the complaint of the status of the complaint if the notice jeopardizes an under cover investigation. The substitute deletes existing Subsections (d)(1) and (2), Section 6D, Article 4582b, V.T.C.S., which exempted information obtained after an inspection or an investigation of a complaint, or information relating to a complaint that has not reached a final disposition from being public information. The substitute does not address Subsection (f), Section 6D, relating to a person contracted to investigate complaints of consumer interest and other complaints. SECTION 17 of the original is redesignated to SECTION 23 of the substitute. The substitute deletes SECTION 18 which amended Section 6G (Administrative Penalty), Article 4582b, V.T.C.S. The substitute adds SECTION 24 to amend Subsections (c) and (e), Section 6G, Article 4582b, V.T.C.S., which SECTION 18 of the original deleted, relating to disclosure of the amount to be assessed to the person or establishment charged with the violation, contesting an administrative penalty after a hearing when the court determines a violation has occurred, and release of the bond when the court determines no violation has occurred. For a complete analysis please see the Section by Section Analysis. The substitute redesignates SECTIONS 19-21 of the original to SECTIONS 25-27 of the substitute. In SECTION 26, the substitute makes conforming changes. The substitute adds SECTION 28 relating to the terms of the members of the commission serving on the effective date of this Act, and to appointments to the commission to accomplish member ship plan for the commission. For a complete analysis please see the Section-by-Section Analysis in this document. The substitute also adds SECTION 29 to amend Subsection C, Section 2, Article 4582b, V.T.C.S., to require the commission to meet at least once each calendar quarter, rather than two times, in Austin, Texas, for transaction of business. The substitute redesignates SECTION 22 of the original to SECTION 30 of the substitute.