HBA-MPM H.B. 3067 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3067
By: Chisum
Public Health
6/15/2001
Introduced



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 (commission) and expanded its
authority.  Currently, the commission licenses both funeral directors and
embalmers, and enforces violations of the commission's statute.  The
commission is subject to the Texas Sunset Act and will be abolished on
September 1, 2001 unless continued by the legislature.  As a result of its
review of the commission, the Sunset Advisory Commission recommended a
two-year continuation and several other statutory modifications.  House
Bill 3607 continues the commission and incorporates the recommendations of
the Sunset Advisory Commission, including the expansion of the commission'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 Services Commission
in SECTION 1.11 (Section 651.157, Occupations Code), SECTION 1.13 (Section
651.202, Occupations Code), SECTION 1.17 (Section 651.164, 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 (commission) for 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 the commission as a member of the Health Professions Council
(council) and provides that the telephone complaint system operated by the
council does not apply to the commission (Secs. 101.002 and 101.0515). The
bill increases from six to seven the number of members of the commission,
three of which must be a licensed as both an embalmer and funeral director.
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 the commission to inspect a licensed funeral
establishment at least once every two years, rather than once a year, and
if the commission 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.  The commission 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 the
commission should inspect an establishment based on the risk of  violation
at an establishment (Sec. 651.157 and SECTION 3.05).  The commission 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). 

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).   

H.B. 3067 authorizes the commission to issue a provisional license to
certain applicants licensed in other jurisdictions and establishes criteria
for a person to receive a provisional license (Sec. 651.2595).  The bill
authorizes the commission 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 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
the commission requires continuing education of licensees, the bill
requires the commission to require completion of a minimum number of hours
of ethics training as part of the education (Sec. 651.266).   

The bill authorizes the commission 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 the
commission and requires the commission to notify the license holder of the
revocation.  The bill authorizes the license holder to appeal the
commission's decision to revoke a license (Sec. 651.5025). The commission
is required by rule to adopt guidelines no later than March 1, 2002 that
define and summarize the violations that occur to assist the commission in
maintaining consistency in determining the amount of an administrative
penalty.  Using those guidelines and the summary, the commission is
required to maintain a chart of violations and penalties and post the
guidelines on the commission's Internet site (Sec. 651.5515 and SECTION
3.04). The bill specifies the criteria the commission is required to use to
determine the amount of the penalty (Sec. 651.552). 

H.B. 3067 expands the commission's regulatory authority to include
crematories and cemeteries.  The bill authorizes the commission to inspect
a cemetery or crematory only if the commission 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 the commission, although a cemetery or crematory can be
owned by a person who is not registered with the commission.  The bill
establishes a procedure for a person to register with the commission as an
operator of a cemetery or crematory.  The commission is required by rule to
establish the registration fee (Sec. 651.653).  The commission 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 the commission, the Texas
Department of Banking is required to provide the commission a list of
perpetual care cemeteries.  The bill requires the commission 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 the commission 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 the
commission 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 the commission to also contract with the
attorney general to ensure adequate access to legal services from the
attorney general (SECTION 2.03).  The commission 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 the commission report quarterly on the status of its efforts
to the Sunset Advisory Commission and a sixmember task force created for
the purpose of reviewing the commission'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 the commission to determine how much progress the commission
has made in addressing and implementing solutions required by this bill.
No later than September 1, 2002, the commission 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
the commission and transfer its function to the Texas Department of
Licensing and Regulation (SECTION 3.02). 

EFFECTIVE DATE

September 1, 2001.