HBA-MPM H.B. 3067 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3067 By: Chisum Public Health 7/18/2001 Enrolled 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 (TFSC) and expanded its authority. TFSC licenses both funeral directors and embalmers, and enforces violations of TFSC's statute. TFSC is subject to the Texas Sunset Act and would have been abolished on September 1, 2001 without continuation by the legislature. As a result of its review of TFSC, the Sunset Advisory Commission recommended a two-year continuation and several other statutory modifications. House Bill 3067 continues TFSC and incorporates recommendations of the Sunset Advisory Commission, including the expansion of the TFSC's regulatory authority to include cemeteries and crematories. 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 (Sections 651.1575 and 651.202, Occupations Code), SECTION 1.17 (Section 651.164, Occupations Code), SECTION 1.23 (Section 651.4065, Occupations Code), SECTION 1.29 (Section 651.5515, Occupations Code), SECTION 1.32 (Section 651.653, Occupations Code), and SECTIONS 3.03, 3.04, and 3.05 of this bill. ANALYSIS House Bill 3067 modifies the Occupations Code to continue the Texas Funeral Service Commission (TFSC) 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 TFSC as a member of the Health Professions Council (council) and provides that the telephone complaint system operated by the council does not apply to TFSC (Secs. 101.002 and 101.0515). The bill increases from six to seven the number of members of TFSC by adding one registered cemetery owner or operator. The governor is required to appoint the additional member no later than November 1, 2002 (Sec. 651.051 and SECTION 3.06). H.B. 3067 requires TFSC to inspect a licensed funeral establishment at least once every two years rather than once a year, and if TFSC 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. TFSC 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 TFSC should inspect an establishment based on the risk of violation at an establishment (Sec. 651.157 and SECTION 3.05). TFSC 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). H.B. 3067 authorizes TFSC to issue a provisional license to certain applicants licensed in another jurisdiction and establishes criteria for a person to receive a provisional license (Sec. 651.2595). The bill authorizes TFSC by rule to adopt a system under which registrations expire (Sec. 651.164). 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 funeral director's liability to the customer is not limited because the director contracts for cemetery or crematory services (Sec. 651.408). 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 TFSC requires continuing education of licensees, the bill requires TFSC to require completion of a minimum number of hours of ethics training as part of the education (Sec. 651.266). The bill authorizes TFSC 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 TFSC and requires TFSC to notify the license holder of the revocation. The bill authorizes the license holder to appeal TFSC's decision to revoke a license (Sec. 651.5025). TFSC is required by rule to adopt guidelines no later than March 1, 2002 that define and summarize the violations that occur to assist TFSC in maintaining consistency in determining the amount of an administrative penalty. Using those guidelines and the summary, TFSC is required to maintain a chart of violations and penalties and post the guidelines on TFSC's Internet site (Sec. 651.5515 and SECTION 3.04). The bill specifies the criteria TFSC is required to use to determine the amount of the penalty (Sec. 651.552). H.B. 3067 expands TFSC's regulatory authority to include crematories and cemeteries. The bill authorizes TFSC to inspect a cemetery or crematory only if TFSC receives a complaint (Sec. 651.1575). The bill prohibits a person from conducting a cemetery or crematory in Texas unless the person who is the owner or operator registers with TFSC, although a cemetery or crematory can be owned by a person who is not registered with TFSC. The bill establishes a procedure for a person to register with TFSC as an operator of a cemetery or crematory. TFSC is required by rule to establish the registration fee (Sec. 651.653). TFSC is required to mail written notice to a registrant of the impending expiration of a registration within 30 days of the date the registration expires and provides penalties for registrants who fail to renew their registration in a timely manner (Sec. 651.655). On request by TFSC, the Texas Department of Banking is required to provide TFSC a list of perpetual care cemeteries. The bill requires TFSC to register each perpetual care cemetery on the list, and provides that the perpetual care cemetery is not required to pay a registration fee (Sec. 651.654). 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 651.4056). H.B. 3067 requires TFSC to contract with the Department of Information Resources (DIR) to improve the compilation of statistics and other information using information resources. The contract shall require DIR to analyze and implement changes to meet the technology needs of TFSC regarding the compiling of information. The bill sets forth the data that must be included in the statistics and information compiled (SECTION 2.02). The bill requires TFSC to also contract with the attorney general to ensure adequate access to legal services from the attorney general (SECTION 2.03). TFSC 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 TFSC 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 TFSC'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 TFSC to determine how much progress TFSC has made in addressing and implementing solutions required by this bill. No later than September 1, 2002, TFSC 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 TFSC and transfer its function to the Texas Department of Licensing and Regulation (SECTION 3.02). EFFECTIVE DATE September 1, 2001.