MPM S.B. 310 76(R)BILL ANALYSIS Office of House Bill AnalysisS.B. 310 By: Cain Public Health 4/19/1999 Committee Report (Amended) BACKGROUND AND PURPOSE Members of the Texas Board of Occupational Therapy Examiners (board) have expressed the concern that the size of the board makes it difficult to function effectively. Board members have also stated that the lack of reimbursement for meals and lodging for board-related events places a financial burden on the board that may not be experienced by members of other state boards, and finally, that the lack of variety of enforcement tools makes it difficult for the board to enforce the Occupational Therapy Practice Act (Act). H.B. 867 expands the number of board members to nine, rather than six, and extends reimbursement privileges to board members. This bill deletes a requirement that a licensee functioning under a provisional license must be sponsored by a person licensed by the Act, with whom the provisional licensee practices. This bill also extends authority to the board, as follows: _the authority to subpoena witnesses and documents when needed to investigate an alleged violation of the Act, _the authority to impose an administrative penalty against a person licensed or facility registered under the Act if the person or facility is in violation of the Act, and _the authority to temporarily suspend a license on an emergency basis if it is determined that the license holder constitutes a continuing or imminent threat to the public health or welfare. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Occupational Therapy Examiners in SECTION 7 (Section 30A) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 3(a) and (b), Article 8851, V.T.C.S. (Occupational Therapy Practice Act), as follows: (a) Requires the Texas Board of Occupational Therapy Examiners (board) to consist of nine members, rather than six. Provides that the terms of three members, rather than two, expire on February 1 of each odd-numbered year. Makes a nonsubstantive change. (b) Provides that four board members, rather than three, must be occupational therapists, residents of Texas, and have practiced occupational therapy for at least three years immediately preceding appointment. Provides that two board members, rather than one, must be occupational therapy assistants, be residents of this state, and have practiced as an occupational therapy assistant for at least three years immediately preceding appointment. Provides that six board members, rather than four, must be licensed under this Act, and that the terms of two of those six members expire on February 1 of each odd-numbered year. Provides that three board members, rather than two, must be public members who are not occupational therapists, and that the term of one public member ends on February 1 of each odd-numbered year. Makes a nonsubstantive change. SECTION 2. Amends Section 3A(b), Article 8851, V.T.C.S. (Occupational Therapy Practice Act), to entitle a board member to reimbursement for meals, lodging and transportation expenses as provided by the General Appropriations Act, rather than just for transportation expenses. SECTION 3. Amends Section 5C, Article 8851, V.T.C.S. (Occupational Therapy Practice Act), by adding Subsections (d) and (e), as follows: (d) Authorizes the board to request or compel by subpoena the attendance of a witness for examination under oath; and the production of records, documents, and other evidence relevant to the investigation of an alleged violation of this Act for inspection and copying. (e) Authorizes the board, acting through the attorney general, to bring an action to enforce the subpoena in a district court in the county where a board hearing may be conducted if a person does not comply with the subpoena. Requires the court to order compliance, if it determines that good cause exists for the subpoena. Authorizes the court to punish for contempt a person who does not obey the order. SECTION 4. Amends Section 18(a), Article 8851, V.T.C.S. (Occupational Therapy Practice Act), to delete the requirement that an applicant for a provisional occupational therapy license must be sponsored by a person licensed by the board with whom the provisional licensee may practice. SECTION 5. Amends Section 29, Article 8851, V.T.C.S. (Occupational Therapy Practice Act ), to change the heading. New title: CRIMINAL PENALTY; CIVIL PENALTY; INJUNCTION. Deletes "penalties" from title. SECTION 6. Amends Article 8851, V.T.C.S. (Occupational Therapy Practice Act), by adding Section 29A, as follows: Sec. 29A. ADMINISTRATIVE PENALTY. (a) Authorizes the board to impose an administrative penalty against a person licensed or registered under this Act who violates this Act or a rule or order adopted under this Act. (b) Stipulates that the penalty may not exceed $200, and that each day a violation continues or occurs is a separate violation. Provides that the amount of the penalty shall be based on certain criteria. (c) Authorizes the person to stay enforcement during the time the order is under judicial review if the person pays the penalty to the court clerk or files a supersedeas bond with the court in the amount of the penalty. Authorizes a person who cannot afford to pay the penalty or file the bond to stay enforcement by filing an affidavit like that required by the Texas Rules of Civil Procedure, except that the board may contest the affidavit as under those rules. (d) Provides that a proceeding to impose an administrative penalty is subject to Chapter 2001 (Administrative Procedure), Government Code. SECTION 7. Amends Article 8851, V.T.C.S. (Occupational Therapy Practice Act), by adding Section 30A, as follows: Sec. 30A. EMERGENCY SUSPENSION. (a) Authorizes the board to temporarily suspend a license on an emergency basis if it is determined that the continued practice by the license holder constitutes an imminent threat to the public health or welfare. (b) Requires a two-thirds vote by the board for a temporary suspension. (c) Provides that a temporarily suspended license may be suspended without notice or hearing if, at the time the suspension is ordered, a hearing on whether to institute a disciplinary proceeding against the license holder is scheduled to be held no later than the 14th day after the date of the temporary suspension. Provides that a second hearing on the suspended license must be held no later than the 60th day after the temporary suspension, and that if a second hearing is not held in the required time, the suspended license is reinstated. (d) Requires the board to adopt rules that establish procedures and standards for the temporary suspension of a license. SECTION 8. Requires the governor, in appointing the three additional board members, to appoint one occupational therapist whose term will expire on February 1, 2000; one person who is a public member whose term will expire on February 1, 2003; and one occupational therapy assistant whose term will expire on February 1, 2005. SECTION 9. Effective date: September 1, 1999. Makes application of Section 3A(b), Occupational Therapy Practice Act (Article 8851, V.T.C.S.) as amended by this bill prospective. SECTION 10. Emergency clause. EXPLANATION OF AMENDMENTS Committee Amendment #1: Amends SECTION 6 (Sec. 29A(a), Article 8851, V.T.C.S.) to authorize the board to impose an administrative penalty against a person licensed or facility registered, rather than a "person licensed or registered," under this Act who violates this Act or a rule or order adopted under it.