CHAPTER 12. POWERS AND DUTIES OF TEXAS DEPARTMENT OF HEALTH - Texas Statutes

HEALTH AND SAFETY CODE

TITLE 2. HEALTH

SUBTITLE A. TEXAS DEPARTMENT OF HEALTH

CHAPTER 12. POWERS AND DUTIES OF TEXAS DEPARTMENT OF HEALTH

SUBCHAPTER A. POWERS AND DUTIES OF BOARD

Sec. 12.0001. POWERS AND DUTIES OF COMMISSIONER OF HEALTH AND

HUMAN SERVICES. The commissioner of health and human services

has the powers and duties relating to the board and commissioner

as provided by Section 531.0055, Government Code. To the extent a

power or duty given to the board or commissioner by this title or

another law conflicts with Section 531.0055, Government Code,

Section 531.0055 controls.

Added by Acts 1999, 76th Leg., ch. 1460, Sec. 2.18, eff. Sept. 1,

1999.

Sec. 12.001. GENERAL POWERS AND DUTIES. (a) The board has

general supervision and control over all matters relating to the

health of the citizens of this state.

(b) The board shall:

(1) adopt rules for its procedure and for the performance of

each duty imposed by law on the board, the department, or the

commissioner and file a copy of those rules with the department;

and

(2) examine, investigate, enter, and inspect any public place or

public building as the board determines necessary for the

discovery and suppression of disease and the enforcement of any

health or sanitation law of this state.

(c) The board has all the powers, duties, and functions granted

by law to:

(1) the Texas Board of Health;

(2) the state commissioner of health;

(3) the Texas Department of Health;

(4) the Texas Board of Health Resources; and

(5) the Texas Department of Health Resources.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.002. BOARD INVESTIGATIONS. (a) A member of the board

may administer oaths, summon witnesses, and compel the attendance

of witnesses in any matter proper for board investigation,

including the determination of nuisances and the investigation

of:

(1) public water supplies;

(2) sanitary conditions;

(3) the existence of infection; or

(4) any matter that requires the board to exercise its

discretionary powers and that is within the general scope of its

authority under this subchapter.

(b) Each district court shall aid the board in its

investigations and in compelling compliance with this subchapter.

If a witness summoned by the board is disobedient or

disrespectful to the board's lawful authority, the district court

of the county in which the witness is summoned to appear shall

punish the witness in the manner provided for contempt of court.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.003. LEGAL REPRESENTATION. (a) A suit brought by the

board must be brought in the name of the state.

(b) The attorney general shall assign a special assistant to

attend to the board's legal matters, and on the board's request

shall furnish necessary assistance to the board relating to its

legal requirements.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.004. DEVELOPMENT OF PROPOSED RULES. (a) This section

applies to the process by which the department develops proposed

rules for the board's consideration before the proposed rules are

published in the Texas Register and before the board,

commissioner, or department complies with the rulemaking

requirements of the administrative procedure law, Chapter 2001,

Government Code. This section does not affect the duty of the

board, commissioner, or department to comply with the rulemaking

requirements of that law.

(b) The board shall require the department to establish a

checklist of methods that, to the extent appropriate, the

department will follow to obtain early in the rule development

process the advice and opinions of the public and of persons who

will be most affected by a proposed rule. The checklist must

include methods for identifying persons who will be most affected

and for soliciting at a minimum the advice and opinions of

affected local health departments, of recipients and providers of

affected services, and of advocates for affected recipients or

providers.

(c) The checklist may include negotiated rulemaking, informal

conferences, advisory committees, and any other appropriate

method.

(d) A rule adopted by the board may not be challenged on the

grounds that the board, commissioner, or department did not

comply with this section. If the department was unable to solicit

a significant amount of advice and opinion from the public or

from affected persons early in the rule development process, the

department shall state in writing to the board the reasons why

the department was unable to do so.

Added by Acts 1999, 76th Leg., ch. 1411, Sec. 1.08, eff. Sept. 1,

1999.

Sec. 12.005. MEDICAL DIRECTOR: MEDICAID MANAGED CARE AND CHIPS

PROGRAMS. (a) In addition to any other medical director

employed by the department, the board shall require the

department to employ a separate medical director whose duties

consist of acting as the medical director for the children's

health insurance program created under Title XXI of the Social

Security Act (42 U.S.C. Section 1397aa et seq.) and also as the

medical director for the Medicaid managed care program, to the

extent that those programs are administered by the department.

(b) The medical director shall be primarily responsible for

implementing and maintaining policies and systems for the

programs that relate to clinical and professional medical issues,

including clinical oversight.

(c) The medical director must be a physician licensed to

practice medicine in this state.

Added by Acts 1999, 76th Leg., ch. 1411, Sec. 1.08, eff. Sept. 1,

1999.

SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT

Sec. 12.011. APPROPRIATIONS, GRANTS, AND DONATIONS. (a) To

carry out its duties and functions, the department may apply for,

contract for, receive, and spend an appropriation or grant from

the state, the federal government, or any other public source,

subject to any limitation or condition prescribed by legislative

appropriation.

(b) The department may accept donations and contributions to be

spent in the interest of public health and the enforcement of

public health laws.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.0111. LICENSING FEES. (a) This section applies in

relation to each licensing program administered by the department

or administered by a regulatory board or other agency that is

under the jurisdiction of the department or administratively

attached to the department. In this section and Section 12.0112,

"license" includes a permit, certificate, or registration.

(b) Notwithstanding other law, the department shall charge a fee

for issuing or renewing a license that is in an amount designed

to allow the department to recover from its license holders all

of the department's direct and indirect costs in administering

and enforcing the applicable licensing program.

(c) Notwithstanding other law, each regulatory board or other

agency that is under the jurisdiction of the department or

administratively attached to the department and that issues

licenses shall charge a fee for issuing or renewing a license

that is in an amount designed to allow the department and the

regulatory board or agency to recover from the license holders

all of the direct and indirect costs to the department and to the

regulatory board or agency in administering and enforcing the

applicable licensing program.

(d) This section does not apply to:

(1) a person regulated under Chapter 773; or

(2) a license or registration under Chapter 401.

Added by Acts 2003, 78th Leg., ch. 198, Sec. 2.42(a), eff. Sept.

1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

1061, Sec. 1, eff. September 1, 2007.

Sec. 12.0112. TERM OF LICENSE. (a) Notwithstanding other law

and except as provided by Subsection (b), the term of each

license issued by the department, or by a regulatory board or

other agency that is under the jurisdiction of the department or

administratively attached to the department, is two years. The

department, regulatory board, or agency may provide for

staggering the issuance and renewal of licenses.

(b) This section does not apply to:

(1) a license issued for a youth camp under Chapter 141;

(2) a food manager certificate issued under Subchapter G,

Chapter 438; or

(3) a license or registration under Chapter 401.

Added by Acts 2003, 78th Leg., ch. 198, Sec. 2.42(a), eff. Sept.

1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

42, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1061, Sec. 2, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

87, Sec. 12.001, eff. September 1, 2009.

Sec. 12.0115. INTEGRATION OF HEALTH CARE DELIVERY PROGRAMS. (a)

In this section, "health care delivery programs" includes the

department's primary health care services program, its program to

improve maternal and infant health, its services for chronically

ill and disabled children, any aspects of health care delivery

under the state Medicaid program assigned to the department by

law or by the Health and Human Services Commission, and the part

of any other department program concerned with the department's

responsibility for the delivery of health care services.

(b) The department shall integrate the functions of its

different health care delivery programs to the maximum extent

possible, including integrating the functions of health care

delivery programs that are part of the state Medicaid program

with functions of health care delivery programs that are not part

of the state Medicaid program.

(c) At a minimum, the department's integration of the functions

of its different health care delivery programs must include the

integration within and across the programs of:

(1) the development of health care policy;

(2) the delivery of health care services, to the extent

appropriate for the recipients of the health care services; and

(3) to the extent possible, the administration of contracts with

providers of health care services, particularly providers who

concurrently provide health care services under more than one

contract or program with the department.

(d) One of the primary goals of the department in integrating

the delivery of health care services for the benefit of

recipients shall be providing for continuity of care for

individuals and families, accomplished to the extent possible by

providing an individual or family with a medical home that serves

as the primary initial health care provider.

(e) One of the primary goals of the department in integrating

the administration of its contracts with providers of health care

services shall be designing an integrated contract administration

system that reduces the administrative and paperwork burden on

providers while still providing the department with the

information it needs to effectively administer the contracts. The

department's integration of contract administration must include:

(1) the integration of the initial procurement process within

and across programs, at least in part by efficiently combining

requests for bids or proposals within or across programs to the

extent it reduces the administrative burden for providers;

(2) the establishment of uniform contract terms, including:

(A) contract terms that require information from providers, or

that prescribe performance standards for providers, that could be

made uniform within or across programs while remaining effective

as contract terms;

(B) the establishment of a procedure under which a contractor or

a person responding to a request for bids or proposals may supply

the department with requested information whenever possible by

referencing current and correct information previously supplied

to and on file with the department; and

(C) contract terms regarding incentives for contractors to meet

or exceed contract requirements;

(3) the integration of contract monitoring, particularly with

regard to monitoring providers that deliver health services for

the department under more than one contract or under more than

one department program; and

(4) the integration of reimbursement methods:

(A) particularly for a provider that delivers health services

for the department under more than one contract or under more

than one department program; and

(B) including the application across programs of the most

effective and efficient reimbursement technologies or methods

that are available to the department under any of its programs.

(f) The department shall examine the extent to which the

department could integrate all or part of its health care

delivery programs into a single delivery system.

(g) If a federal requirement that the federal government may

waive restricts the department's integration efforts under this

section, the department may seek a waiver of the requirement from

the federal government. If the waiver affects a program for which

another state agency is designated the single state agency for

federal purposes, the department shall request the single state

agency to seek the waiver.

(h) The department may not integrate health care delivery

programs under this section in a way that affects the single

state agency status of another state agency for federal purposes

without obtaining the approval of the Health and Human Services

Commission and any necessary federal approval.

Added by Acts 1999, 76th Leg., ch. 1411, Sec. 1.09, eff. Sept. 1,

1999.

Sec. 12.012. AWARDING CONTRACTS OR GRANTS AND SELECTING SERVICE

PROVIDERS. (a) In awarding contracts or grants for services, or

in selecting service providers under any program administered by

the department, the department shall give preference to providers

who can deliver appropriate services of similar quality in the

most cost-effective manner.

(b) In awarding the contracts or grants or selecting the

providers, the department may not discriminate among licensed

health care providers who can provide the services under the

authority of their licenses.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.0121. CONTRACTING FOR PROFESSIONAL SERVICES. (a) In

this section, "professional services" means those services

performed by an individual who is licensed, certified,

registered, or otherwise authorized by the state and who acts

within the scope of the individual's license, certification,

registration, or other authorization in the practice of a health

or allied health profession.

(b) The board by rule shall adopt a list of categories of

licensed, certified, registered, or otherwise authorized

providers to whom the department may award a grant for

professional services under this section or with whom the

department may contract or otherwise engage to perform

professional services under this section.

(c) The department may award a grant, enter into a contract, or

otherwise engage an individual or a group or association of

individuals to perform professional services selected on the

basis of competitive proposals submitted for the grant, contract,

or services to be performed. The department may also make the

selection on the basis of:

(1) demonstrated competence and qualifications for the type of

professional services to be performed; and

(2) whether the fees for the professional services to be

performed are fair, reasonable, and consistent with and not

higher than the usual and customary fees for the services to be

performed and do not exceed any maximum provided by state law.

(d) The department may award a grant, enter into a contract, or

otherwise engage an individual or a group or association of

individuals to perform professional services without complying

with Subsection (c) if the commissioner by order ratified by the

board at its next regular meeting determines that an emergency

exists that necessitates the use of different procedures. A

grant, contract, or engagement under this subsection is effective

only for the period specified by the commissioner's order.

Added by Acts 1991, 72nd Leg., ch. 284, Sec. 1, eff. Sept. 1,

1991.

Sec. 12.0122. SALE OF LABORATORY SERVICES. (a) The department

may enter into a contract for the sale and provision of

laboratory services in accordance with this section.

(b) The department may enter into a contract with:

(1) a federal, state, or local governmental entity; or

(2) a freestanding public health clinic owned or controlled by a

nonprofit organization.

(c) For purposes of Subsection (b)(1), a contract with a federal

governmental entity does not include a contract relating to

Medicare managed care services.

(d) The department by rule may establish charges for the sale of

laboratory services.

(e) The department may enter into a contract with a party in or

outside of this state.

(f) In this section, "laboratory services" means the activities

performed by the laboratory established by the department. The

term includes the provision of supplies and test materials and

the performance of scientific procedures to analyze or assess

specimens from any source, but does not include tissue and

cytology specimens, except for pap smears for recipients under

federally funded programs or genetic testing.

Added by Acts 1997, 75th Leg., ch. 647, Sec. 1, eff. June 11,

1997. Renumbered from Sec. 12.020 by Acts 1999, 76th Leg., ch.

62, Sec. 19.01(62), eff. Sept. 1, 1999.

Sec. 12.01221. MUTUAL AID AGREEMENT FOR NEWBORN SCREENING

LABORATORY SERVICES. (a) In this section, "newborn screening

laboratory services" means the performance of tests to analyze

specimens collected as part of the newborn screenings performed

under Subchapter B, Chapter 33.

(b) Notwithstanding Section 12.0122 or other law, the department

may enter into a mutual aid agreement to provide newborn

screening laboratory services to another state and to receive

newborn screening laboratory services from another state in the

event of an unexpected interruption of service, including an

interruption caused by a disaster.

(c) Each mutual aid agreement under Subsection (b) shall include

provisions:

(1) to address the confidentiality of the identity of the

newborn child and the newborn child's family; and

(2) to ensure the return of blood specimens and related records

to the state that received the newborn screening laboratory

services.

Added by Acts 2009, 81st Leg., R.S., Ch.

109, Sec. 1, eff. September 1, 2009.

Text of section as added by Acts 1999, 76th Leg., ch. 1411, Sec.

1.10

Sec. 12.0123. EXTERNAL AUDITS OF CERTAIN MEDICAID CONTRACTORS

BASED ON RISK. (a) In this section, "Medicaid contractor" means

an entity that:

(1) is not a health and human services agency as defined by

Section 531.001, Government Code; and

(2) under a contract with or otherwise on behalf of the

department, performs one or more administrative services in

relation to the department's operation of a part of the state

Medicaid program, such as claims processing, utilization review,

client enrollment, provider enrollment, quality monitoring, or

payment of claims.

(b) The department shall contract with an independent auditor to

perform independent external financial and performance audits of

any Medicaid contractor used by the department in the

department's operation of a part of the state Medicaid program.

The department regularly shall review its Medicaid contracts and

ensure that:

(1) the frequency and extent of audits of a Medicaid contractor

under this section are based on the amount of risk to the state

involved in the administrative services being performed by the

contractor;

(2) audit procedures related to financial audits and performance

audits are used consistently in audits under this section; and

(3) to the extent possible, audits under this section are

completed in a timely manner.

(c) If another state agency succeeds to the department's

operation of a part of the state Medicaid program for which the

department used a Medicaid contractor, the successor agency shall

comply with this section with regard to the Medicaid contractor,

including the requirement to contract with an independent auditor

to perform the external financial and performance audits required

by this section.

Added by Acts 1999, 76th Leg., ch. 1411, Sec. 1.10, eff. Sept. 1,

1999.

Text of section as added by Acts 1999, 76th Leg., ch. 1447, Sec.

1 and by Acts 1999, 76th Leg., ch. 1460, Sec. 9.01

Sec. 12.0123. EXTERNAL AUDITS OF CERTAIN MEDICAID CONTRACTORS.

(a) In this section, "Medicaid contractor" means an entity that:

(1) is not a health and human services agency as defined by

Section 531.001, Government Code; and

(2) under contract with or otherwise on behalf of the

department, performs one or more administrative services in

relation to the department's operation of a part of the state

Medicaid program, such as claims processing, utilization review,

client enrollment, provider enrollment, quality monitoring, or

payment of claims.

(b) The department shall contract with an independent auditor to

perform annual independent external financial and performance

audits of any Medicaid contractor used by the department in the

department's operation of a part of the state Medicaid program.

(c) The department shall ensure that audit procedures related to

financial audits and performance audits are used consistently in

audits under this section.

(d) An audit required by this section must be completed before

the end of the fiscal year immediately following the fiscal year

for which the audit is performed.

Added by Acts 1999, 76th Leg., ch. 1447, Sec. 1, eff. June 19,

1999; Acts 1999, 76th Leg., ch. 1460, Sec. 9.01, eff. Sept. 1,

1999.

Sec. 12.0124. ELECTRONIC TRANSACTIONS; STATE MEDICAID PROGRAM.

The department or the department's successor in function in

relation to the department's operation of a part of the state

Medicaid program shall implement policies that encourage the use

of electronic transactions. The policies shall require payment to

Medicaid service providers by electronic funds transfer,

including electronic remittance and status reports. The policies

shall also include the establishment of incentives to submit

claims electronically and of disincentives to submit claims on

paper that are reasonably based on the higher administrative

costs to process claims submitted on paper.

Added by Acts 1999, 76th Leg., ch. 1411, Sec. 1.10, eff. Sept. 1,

1999.

Sec. 12.0125. DRUG REBATES. (a) The department shall develop a

voluntary drug manufacturer rebate program for drugs purchased by

or on behalf of a client of the Kidney Health Care Program or the

Chronically Ill and Disabled Children's Services Program for

which rebates are not available under the Medicaid drug

manufacturer rebate program.

(b) The department shall consult with drug manufacturers to

develop rebate amounts for the new voluntary rebate program. The

average percentage savings from rebates in the new program may

not be less than the average percentage savings from rebates in

the Medicaid drug manufacturer rebate program.

(c) Amounts received by the department under the drug rebate

program established under this section may be appropriated only

for the Kidney Health Care Program or the Chronically Ill and

Disabled Children's Services Program.

Added by Acts 1999, 76th Leg., ch. 669, Sec. 2, eff. June 18,

1999.

Sec. 12.0127. IMMIGRATION VISA WAIVERS FOR PHYSICIANS. (a) The

department, in accordance with 8 U.S.C. Section 1182(e), as

amended, under exceptions provided by 8 U.S.C. Section 1184(l),

as amended, may request waiver of the foreign country residence

requirement for a qualified alien physician who agrees to

practice medicine in a medically underserved area or health

professional shortage area, as designated by the United States

Department of Health and Human Services, that has a current

shortage of physicians.

(b) The department may charge a fee to cover the costs incurred

by the department in administering the visa waiver program

established under this section.

Added by Acts 2003, 78th Leg., ch. 143, Sec. 1, eff. Sept. 1,

2003.

Sec. 12.0128. HEALTH ALERT NETWORK. The department shall

include the Texas Association of Local Health Officials, the

Texas Association of Community Health Centers, and the Texas

Organization of Rural and Community Hospitals in the department's

Texas Health Alert Network to the extent federal funds for

bioterrorism preparedness are available for that purpose.

Added by Acts 2005, 79th Leg., Ch.

1337, Sec. 17, eff. June 18, 2005.

Sec. 12.013. DRIVING AND TRAFFIC POLICIES. (a) The department

shall continuously study and investigate the medical aspects of:

(1) the licensing of drivers;

(2) the enforcement of traffic safety laws, including

differentiation between drivers who are ill or intoxicated; and

(3) accident investigation, including examination for alcohol or

drugs in the bodies of persons killed in traffic accidents.

(b) Based on the studies and investigations, the department

periodically shall recommend to the Department of Public Safety

appropriate policies, standards, and procedures relating to those

medical aspects.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.014. REGISTRY. (a) The department may establish a

registry or system of registries for providers of health-related

services who are not otherwise licensed, registered, or certified

by any state agency, board, or commission.

(b) The board by rule may adopt reasonable registration fees to

cover the costs of establishing and maintaining a registry and

may adopt other rules as necessary to administer this section.

(c) A person seeking to register with the department must submit

a request for registration on a form prescribed by the

department.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 5, eff. Sept. 1,

1991.

Sec. 12.0145. INFORMATION ABOUT ENFORCEMENT ACTIONS. (a) The

department shall publish and provide information in accordance

with this section regarding each final enforcement action taken

by the department, commissioner, or board against a person or

facility regulated by the department in which any kind of

sanction is imposed, including:

(1) the imposition of a reprimand, a period of probation, a

monetary penalty, or a condition on a person's continued practice

or a facility's continued operation; and

(2) the refusal to renew or the suspension, probation, or

revocation of a license or other form of permission to engage in

an activity.

(b) Except to the extent that the information is specifically

made confidential under other law, the department shall publish

and provide the name, including any trade name, of the person or

facility against which an enforcement action was taken, the

violation that the person or facility was found to have

committed, and the sanction imposed. The department shall publish

and provide the information in a way that does not serve to

identify a complainant.

(c) The department shall publish the information on its

generally accessible Internet site. The department also shall

provide the information by establishing a system under which

members of the public can call toll-free numbers to obtain the

information efficiently and with a minimum of delay. The

department shall appropriately publicize the toll-free numbers.

(d) The department shall publish and provide the information

promptly after the sanction has been imposed or, when applicable,

promptly after the period during which the sanction is imposed

has begun. The department by rule shall establish the length of

time during which the required information will be published and

provided under this section based on the department's

determination regarding the types of services provided by

regulated entities and the length of time for which information

about a category of enforcement actions is useful to a member of

the public.

(e) The department shall publish and provide the information

using clear language that can be readily understood by a person

with a high school education.

(f) If another law specifically requires that particular

information subject to this section shall be published in another

manner, the department shall comply with this section and with

the other law.

(g) A determination that the department is not required to

publish and provide information under this section does not

affect a determination regarding whether the information is

subject to required disclosure under the open records law,

Chapter 552, Government Code. The department's determination

regarding the length of the period during which information

should continue to be published and provided under this section

does not affect a determination regarding the period for which

the information must be preserved under Chapter 441, Government

Code, or under another law.

Added by Acts 1999, 76th Leg., ch. 1411, Sec. 1.11, eff. Sept. 1,

1999.

Sec. 12.0146. TRENDS IN ENFORCEMENT. The department shall

publish annually an analysis of its enforcement actions taken

under state law with regard to each profession, industry, or type

of facility regulated by the department. The analysis for each

regulatory area must show at a minimum the year-to-year trends in

the number and types of enforcement actions taken by the

department in its regulation of the profession, industry, or type

of facility.

Added by Acts 1999, 76th Leg., ch. 1411, Sec. 1.11, eff. Sept. 1,

1999.

Sec. 12.015. INFORMATION ON COMMUNITY SERVICES. (a) If the

department determines that a person is not eligible for a level

of care in a nursing home, the department shall inform the person

that community services might be available under the community

care for the aged and disabled program administered by the Texas

Department of Human Services.

(b) The department shall provide to the person a list of

services available under the program and a telephone number to

call for more information on the services.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 6, eff. Sept. 1,

1991.

Sec. 12.016. PUBLIC HEARING PROCEDURES. (a) Any statements,

correspondence, or other form of oral or written communication

made by a member of the legislature to a department official or

employee during a public hearing conducted by the department

shall become part of the record of the hearing, regardless of

whether the member is a party to the hearing.

(b) When a public hearing conducted by the department is

required by law to be conducted at a certain location, the

department shall determine the place within that location at

which the hearing will be conducted. In making that

determination, the department shall consider the cost of

available facilities and the adequacy of a facility to

accommodate the type of hearing and anticipated attendance.

(c) The department shall conduct at least one session of a

public hearing after normal business hours on request by a party

to the hearing or any person who desires to attend the hearing.

(d) An applicant for a license, permit, registration, or similar

form of permission required by law to be obtained from the

department may not amend the application after the 31st day

before the date on which a public hearing on the application is

scheduled to begin. If an amendment of an application would be

necessary within that period, the applicant shall resubmit the

application to the department and must again comply with notice

requirements and any other requirements of law or board rule as

though the application were originally submitted to the

department on that date.

(e) If an application for a license, permit, registration, or

similar form of permission required by law is pending before the

department at the time when changes take effect concerning notice

requirements imposed by law for that type of application, the

applicant must comply with the new notice requirements.

Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 9.01, eff.

Sept. 1, 1991.

Sec. 12.017. MANAGED CARE ORGANIZATIONS: MEDICAID PROGRAM. (a)

Except as provided by Section 533.047, the department shall

develop for managed care organizations that serve Medicaid

clients performance, operation, quality of care, marketing, and

financial standards and standards relating to children's access

to good quality health care services. In developing the

standards, the department shall include measures to monitor and

assess the performance of managed care organizations relating to

the health status and outcome of care for Medicaid clients.

(b) In establishing standards under this section, the department

shall ensure that:

(1) to the extent possible, each Medicaid client can receive

good quality health care services in the client's local

community;

(2) plans serving children have adequate capacity to provide

pediatric care; and

(3) plans provide timely access and appropriate referrals for

specialty care.

Added by Acts 1995, 74th Leg., ch. 574, Sec. 1, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(59),

eff. Sept. 1, 1997.

Sec. 12.018. UNANNOUNCED INSPECTIONS. The department may make

any inspection of a facility or program under the department's

jurisdiction without announcing the inspection.

Added by Acts 1995, 74th Leg., ch. 531, Sec. 1, eff. Aug. 28,

1995. Renumbered from Health and Safety Code Sec. 12.017 by Acts

1997, 75th Leg., ch. 165, Sec. 31.01(50), eff. Sept. 1, 1997.

Sec. 12.019. GENETIC COUNSELING FEES. (a) The department may

charge for providing genetic counseling services. The fee may not

exceed the actual cost of providing the services.

(b) The department shall use the fees for providing genetic

counseling services.

Added by Acts 1995, 74th Leg., ch. 76, Sec. 8.116, eff. Sept. 1,

1995. Renumbered from Health and Safety Code Sec. 12.017 by Acts

1997, 75th Leg., ch. 165, Sec. 31.01(51), eff. Sept. 1, 1997.

Sec. 12.020. PROTECTION AND USE OF INTELLECTUAL PROPERTY. (a)

The department may:

(1) apply for, register, secure, hold, and protect under the

laws of the United States, any state, or any nation:

(A) a patent for an invention or discovery of, or improvement

to, any process, machine, manufacture, or composition of matter;

(B) a copyright for an original work of authorship fixed in any

tangible medium of expression now known or later developed that

can be perceived, reproduced, or otherwise communicated;

(C) a trademark, service mark, collective mark, or certification

mark for a word, name, symbol, device, or slogan, or any

combination of those items, that has been adopted and used by the

department to identify goods or services and distinguish those

goods or services from other goods or services; or

(D) other evidence of protection or exclusivity issued in or for

intellectual property;

(2) enter into a contract with an individual or company for the

sale, lease, marketing, or other distribution of intellectual

property of the department;

(3) obtain under a contract entered into under Subdivision (2) a

royalty, license right, or other appropriate means of securing

appropriate compensation for the development or purchase of

intellectual property of the department; and

(4) waive or reduce the amount of a fee, royalty, or other thing

of monetary or nonmonetary value to be assessed by the department

if the department determines that the waiver will:

(A) further the goals and missions of the department; and

(B) result in a net benefit to the state.

(b) Intellectual property for which the department has applied

for or received a patent, copyright, trademark, or other evidence

of protection or exclusivity is excepted from required disclosure

under Chapter 552, Government Code.

(c) Money paid to the department under this section shall be

deposited to the credit of the general revenue fund except as

otherwise provided in Section 2054.115, Government Code.

(d) It is not a violation of Chapter 572, Government Code, or

another law of this state for an employee of the department who

conceives, creates, discovers, invents, or develops intellectual

property to own or to be awarded any amount of equity interest or

participation in the research, development, licensing, or

exploitation of that intellectual property with the approval of

the commissioner.

(e) The commissioner shall institute intellectual property

policies for the department that establish minimum standards for:

(1) the public disclosure or availability of products,

technology, and scientific information, including inventions,

discoveries, trade secrets, and computer software;

(2) review by the department of products, technology, and

scientific information, including consideration of ownership and

appropriate legal protection;

(3) the licensing of products, technology, and scientific

information;

(4) the identification of ownership and licensing

responsibilities for each class of intellectual property; and

(5) royalty participation by inventors and the department.

Added by Acts 1997, 75th Leg., ch. 143, Sec. 1, eff. May 19,

1997.

SUBCHAPTER C. POWERS AND DUTIES OF COMMISSIONER

Sec. 12.021. ADMINISTRATION AND ENFORCEMENT DUTIES. The

commissioner shall administer and enforce the health laws of this

state under the board's supervision.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

SUBCHAPTER D. FEES FOR PUBLIC HEALTH SERVICES

Sec. 12.031. DEFINITION. In this subchapter, "public health

services" means:

(1) personal health promotion, maintenance, and treatment

services;

(2) infectious disease control and prevention services;

(3) environmental and consumer health protection services;

(4) laboratory services;

(5) health facility architectural plan review;

(6) public health planning, information, and statistical

services;

(7) public health education and information services; and

(8) administration services.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.032. FEES FOR PUBLIC HEALTH SERVICES. (a) The board by

rule may charge fees to a person who receives public health

services from the department.

(b) The board by rule may require department contractors to

charge fees for public health services provided by department

contractors participating in the department's programs. A

department contractor shall retain a fee collected under this

subsection and shall use the fee in accordance with the contract

provisions.

(c) The amount of a fee charged for a public health service may

not exceed the cost to the department of providing the service.

(d) The board may establish a fee schedule. In establishing the

schedule, the board shall consider a person's ability to pay the

entire amount of a fee.

(e) The board may not deny public health services to a person

because of the person's inability to pay for the services.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.033. DISTRIBUTION AND ADMINISTRATION OF CERTAIN VACCINES

AND SERA. (a) Except as otherwise provided by this section, the

board by rule shall charge fees for the distribution and

administration of vaccines and sera provided under:

(1) Section 38.001, Education Code;

(2) Section 42.043, Human Resources Code;

(3) Chapter 826 (Rabies Control Act of 1981);

(4) Chapter 81 (Communicable Disease Prevention and Control

Act); and

(5) Section 161.005.

(b) Except as otherwise provided by this section, the board by

rule may require a department contractor to charge fees for

public health services provided by a contractor participating in

a department program under the laws specified by Subsection (a).

(c) Provided the board finds that the monetary savings of this

subsection are greater than any costs associated with

administering it, the board by rule shall establish a fee

schedule for fees under this section. In establishing the fee

schedule, the board shall consider a person's financial ability

to pay all or part of the fee, including the availability of

health insurance coverage. In the event the fee schedule

conflicts with any federal law or regulation, the board shall

seek a waiver from the applicable federal law or regulation to

permit the fee schedule. In the event the waiver is denied, the

fee schedule shall not go into effect.

(d) The commissioner may waive the fee requirement for any type

of vaccine or serum if the commissioner determines that:

(1) a public health emergency exists; and

(2) the vaccine or serum is needed to meet the emergency.

(e) The department may not deny an immunization to an individual

required to be immunized under a law specified by Subsection (a)

because of the individual's inability to pay for the

immunization. The department shall provide the immunization at a

reduced charge or no charge according to the financial ability of

the individual or a person with a legal obligation to support the

individual to pay for the immunization. The department shall give

priority to those persons least able to pay for immunization.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1993, 73rd Leg., ch. 43, Sec. 1, eff. Sept. 1,

1993; Acts 1997, 75th Leg., ch. 165, Sec. 6.33, eff. Sept. 1,

1997.

Sec. 12.034. COLLECTION PROCEDURES. (a) The board shall

establish procedures for the collection of fees for public health

services. The procedures shall be used by the department and by

those department contractors required by the board to charge

fees.

(b) The fees may be collected either before the performance of

the services or by billing after the services are performed.

(c) The department shall make a reasonable effort to collect

fees billed after services are performed. However, the board by

rule may waive the collection procedures if the administrative

costs exceed the fees to be collected.

(d) If the board elects to require cash payments by program

participants, the money received shall be deposited locally at

the end of each day and retained by the department for not more

than seven days. At the end of that time, the money shall be

deposited in the state treasury.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.035. PUBLIC HEALTH SERVICES FEE FUND. (a) The

department shall deposit all money collected for fees and charges

collected under Sections 12.0122(d) and 12.032(a) in the state

treasury to the credit of the Texas Department of Health public

health services fee fund.

(b) The department shall maintain proper accounting records to

allocate the fund among the state and federal programs generating

the fees and administrative costs incurred in collecting the

fees.

(c) The public health services fee fund is exempt from Section

403.095(b), Government Code.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1997, 75th Leg., ch. 647, Sec. 2, eff. June 11,

1997; Acts 1999, 76th Leg., ch. 62, Sec. 19.02(11), eff. Sept. 1,

1999.

Sec. 12.036. SUBROGATION. (a) In furnishing public health

services to a person, the department is subrogated to the

person's right of recovery from:

(1) personal insurance;

(2) another person, for a personal injury caused by the other

person's negligence or wrongdoing; or

(3) any other source.

(b) The department's right of subrogation is limited to the cost

of the services provided.

(c) The board or the board's designee may waive the department's

right of subrogation in whole or in part if the board or the

designee determines that:

(1) enforcement of the right would tend to defeat the purpose of

the department's program; or

(2) the administrative expense of the enforcement would be

greater than the expected recovery.

(d) The board may adopt rules for the enforcement of the

department's right of subrogation.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.037. MODIFICATION, SUSPENSION, OR TERMINATION OF

SERVICES. (a) The department may modify, suspend, or terminate

public health services to a person for nonpayment of billed

services after notice to the affected person and an opportunity

for a fair hearing.

(b) The board by rule shall prescribe the criteria for

department action under this section.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.038. RULES. The board may adopt rules necessary to

implement this subchapter.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.039. CONSTRUCTION OF OTHER LAWS. (a) This subchapter

does not repeal or modify a statute in effect on August 29, 1983,

that fixes the amount, directs the disposition, prohibits the

collection, or prescribes the basis for computing any fee or

charge.

(b) This section does not restrict the determination or

recomputing of a fee or charge in accordance with the prescribed

basis for computing the fee or charge.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

SUBCHAPTER E. GRANTS OR CONTRACTS FOR PURCHASES OF PUBLIC HEALTH

SERVICES, EQUIPMENT, OR SUPPLIES

Sec. 12.051. PROVISION OF FUNDS. The department may provide

funds by grant or contract to a qualified person for the purchase

of services, equipment, or supplies to be used to promote and

maintain the public health.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Sec. 12.052. REQUIREMENTS FOR EXPENDITURE OF CERTAIN FUNDS. (a)

The expenditure of funds received by local units of government

from the department is governed by Chapter 783, Government Code,

and the rules adopted under that law, except as provided by

Section 12.055.

(b) The expenditure of funds received by other state agencies

from the department is governed by Subtitle D, Title 10,

Government Code, and the rules adopted under that law, except as

provided by Section 12.055.

(c) The expenditure of funds received by any other qualified

person from the department is governed by the grant or contract

between the person and the department.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.15, eff. Sept.

1, 1997; Acts 1997, 75th Leg., ch. 1045, Sec. 3, eff. Sept. 1,

1997.

Sec. 12.053. INVENTORY REQUIREMENTS. All equipment and supplies

which are purchased through a program, contract, or grant with

the department by or for qualified entities, including but not

limited to individuals, corporations, local units of government

and other state agencies and that are used to promote and

maintain public health are exempt from the statewide personal

property accounting system administered by the comptroller of

public accounts described in Subchapter L, Chapter 403,

Government Code. The qualified entities shall maintain complete

equipment and supply records. The department may request the

return of any usable equipment or supplies purchased with funds

provided by the department upon the termination of the program,

contract, or grant.

Added by Acts 1991, 72nd Leg., 2nd C.S., ch. 8, Sec. 5.05, eff.

Sept. 1, 1991.

Sec. 12.054. DISPOSITION OF CERTAIN DEPARTMENT PROPERTY. (a)

This section applies only to property that is surplus or salvage

property under Chapter 2175, Government Code, and that is:

(1) exempt under Section 12.053 from the statewide personal

property accounting system; or

(2) lawfully in the possession of an emergency medical services

provider or governmental entity as those terms are defined by

Section 773.003.

(b) The department may negotiate directly with an emergency

medical services provider or governmental entity to transfer

title to property covered by this section for which the

department determines that it holds title. The department and the

provider or governmental entity may mutually agree upon the value

of the property and shall take any action incident to the

transaction that is required by federal law.

(c) The department shall initiate necessary procedures under

Chapter 2175, Government Code, to dispose of surplus or salvage

property for which the department does not transfer title under

this section.

Added by Acts 1993, 73rd Leg., ch. 164, Sec. 1, eff. Sept. 1,

1993. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 17.19(10),

eff. Sept. 1, 1997.

Sec. 12.055. CERTAIN PROCUREMENTS MADE WITH DEPARTMENT FUNDS.

(a) A state agency or local unit of government that expends

funds received from the department for the acquisition of goods

and services may satisfy the requirements of Section 12.052 or of

another state law requiring procurements by competitive bidding

or competitive sealed proposals by procuring goods or services

with those funds in accordance with Section 12.056 or in

accordance with:

(1) Section 2155.144, Government Code, if the entity is a state

agency subject to that law;

(2) Section 32.043 or 32.044, Human Resources Code, if the

entity is a public hospital subject to those laws; or

(3) this section, if the entity is not covered by Subdivision

(1) or (2).

(b) A state agency or local unit of government under Subsection

(a)(3) shall acquire goods or services by any procurement method

approved by the Health and Human Services Commission that

provides the best value to the state agency or local unit of

government. The state agency or local unit of government shall

document that the state agency or local unit of government

considered all relevant factors under Subsection (c) in making

the acquisition.

(c) Subject to Subsection (d), the state agency or local unit of

government may consider all relevant factors in determining the

best value, including:

(1) any installation costs;

(2) the delivery terms;

(3) the quality and reliability of the vendor's goods or

services;

(4) the extent to which the goods or services meet the state

agency's or local unit of government's needs;

(5) indicators of probable vendor performance under the contract

such as past vendor performance, the vendor's financial resources

and ability to perform, the vendor's experience and

responsibility, and the vendor's ability to provide reliable

maintenance agreements;

(6) the impact on the ability of the state agency or local unit

of government to comply with laws and rules relating to

historically underutilized businesses or relating to the

procurement of goods and services from persons with disabilities;

(7) the total long-term cost to the state agency or local unit

of government of acquiring the vendor's goods or services;

(8) the cost of any employee training associated with the

acquisition;

(9) the effect of an acquisition on the state agency's or local

unit of government's productivity;

(10) the acquisition price; and

(11) any other factor relevant to determining the best value for

the state agency or local unit of government in the context of a

particular acquisition.

(d) If a state agency to which this section applies acquires

goods or services with a value that exceeds $100,000, the state

agency shall consult with and receive approval from the Health

and Human Services Commission before considering factors other

than price and meeting specifications.

(e) The state auditor or the department may audit the state

agency's or local unit of government's acquisitions of goods and

services under this section.

(f) The state agency or local unit of government may adopt rules

and procedures for the acquisition of goods and services under

this section.

Added by Acts 1997, 75th Leg., ch. 1045, Sec. 4, eff. Sept. 1,

1997.

Sec. 12.056. PARTICIPATION IN DEPARTMENT PURCHASING CONTRACTS OR

GROUP PURCHASING PROGRAM. The department may allow a state

agency, local unit of government, or private entity that expends

funds received by the department to purchase goods or services

using those funds by participating in:

(1) a contract the department has made to purchase goods or

services; or

(2) a group purchasing program established or designated by the

department that offers discounts to providers of health services.

Added by Acts 1997, 75th Leg., ch. 1045, Sec. 4, eff. Sept. 1,

1997.

SUBCHAPTER F. OFFICE OF TEXAS-MEXICO HEALTH AND ENVIRONMENTAL

ISSUES

Sec. 12.071. OFFICE OF TEXAS-MEXICO HEALTH AND ENVIRONMENTAL

ISSUES. The department shall establish and maintain an office in

the department to coordinate and promote health and environmental

issues between this state and Mexico.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 7, eff. Sept. 1,

1991.

SUBCHAPTER H. MEDICAL ADVISORY BOARD

Sec. 12.091. DEFINITIONS. In this subchapter:

(1) "Medical standards division" means the Medical Standards on

Motor Vehicle Operations Division of the department.

(2) "Panel" means a panel of the medical advisory board.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995.

Sec. 12.092. MEDICAL ADVISORY BOARD; BOARD MEMBERS. (a) The

commissioner shall appoint the medical advisory board members

from:

(1) persons licensed to practice medicine in this state,

including physicians who are board certified in internal

medicine, psychiatry, neurology, physical medicine, or

ophthalmology and who are jointly recommended by the Texas

Department of Health and the Texas Medical Association; and

(2) persons licensed to practice optometry in this state who are

jointly recommended by the department and the Texas Optometric

Association.

(b) The medical advisory board shall assist the Department of

Public Safety of the State of Texas in determining whether:

(1) an applicant for a driver's license or a license holder is

capable of safely operating a motor vehicle; or

(2) an applicant for or holder of a license to carry a concealed

handgun under the authority of Subchapter H, Chapter 411,

Government Code, is capable of exercising sound judgment with

respect to the proper use and storage of a handgun.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1261, Sec. 21, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 9.23, eff.

Sept. 1, 1999.

Sec. 12.093. ADMINISTRATION; RULES. (a) The medical advisory

board is administratively attached to the medical standards

division.

(b) The medical standards division:

(1) shall provide administrative support for the medical

advisory board and panels of the medical advisory board; and

(2) may collect and maintain the individual medical records

necessary for use by the medical advisory board and the panels

under this section from a physician, hospital, or other health

care provider.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995.

Sec. 12.094. RULES RELATING TO MEDICAL ADVISORY BOARD MEMBERS.

(a) The board:

(1) may adopt rules to govern the activities of the medical

advisory board;

(2) by rule may establish a reasonable fee to pay a member of

the medical advisory board for the member's professional

consultation services; and

(3) if appropriate, may authorize per diem and travel allowances

for each meeting a member attends, not to exceed the amounts

authorized for state employees by the General Appropriations Act.

(b) The fee under Subsection (a)(2) may not be less than $75 or

more than $150 for each meeting that the member attends.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995.

Sec. 12.095. BOARD PANELS; POWERS AND DUTIES. (a) If the

Department of Public Safety of the State of Texas requests an

opinion or recommendation from the medical advisory board as to

the ability of an applicant or license holder to operate a motor

vehicle safely or to exercise sound judgment with respect to the

proper use and storage of a handgun, the commissioner or a person

designated by the commissioner shall convene a panel to consider

the case or question submitted by that department.

(b) To take action as a panel, at least three members of the

medical advisory board must be present.

(c) Each panel member shall prepare an individual independent

written report for the Department of Public Safety of the State

of Texas that states the member's opinion as to the ability of

the applicant or license holder to operate a motor vehicle safely

or to exercise sound judgment with respect to the proper use and

storage of a handgun, as appropriate. In the report the panel

member may also make recommendations relating to that

department's subsequent action.

(d) In its deliberations, a panel may examine any medical record

or report that contains material that may be relevant to the

ability of the applicant or license holder.

(e) The panel may require the applicant or license holder to

undergo a medical or other examination at the applicant's or

holder's expense. A person who conducts an examination under

this subsection may be compelled to testify before the panel and

in any subsequent proceedings under Subchapter H, Chapter 411,

Government Code, or Subchapter N, Chapter 521, Transportation

Code, as applicable, concerning the person's observations and

findings.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995. Amended by Acts 1997, 75th Leg., ch. 1261, Sec. 22, eff.

Sept. 1, 1997.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1146, Sec. 11.22, eff. September 1, 2009.

Sec. 12.096. PHYSICIAN REPORT. (a) A physician licensed to

practice medicine in this state may inform the Department of

Public Safety of the State of Texas or the medical advisory

board, orally or in writing, of the name, date of birth, and

address of a patient older than 15 years of age whom the

physician has diagnosed as having a disorder or disability

specified in a rule of the Department of Public Safety of the

State of Texas.

(b) The release of information under this section is an

exception to the patient-physician privilege requirements imposed

under Section 159.002, Occupations Code.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.768,

eff. Sept. 1, 2001.

Sec. 12.097. CONFIDENTIALITY REQUIREMENTS. (a) All records,

reports, and testimony relating to the medical condition of an

applicant or license holder:

(1) are for the confidential use of the medical advisory board,

a panel, or the Department of Public Safety of the State of

Texas;

(2) are privileged information; and

(3) may not be disclosed to any person or used as evidence in a

trial except as provided by Subsection (b).

(b) In a subsequent proceeding under Subchapter H, Chapter 411,

Government Code, or Subchapter N, Chapter 521, Transportation

Code, the medical standards division may provide a copy of the

report of the medical advisory board or panel and a medical

record or report relating to an applicant or license holder to:

(1) the Department of Public Safety of the State of Texas;

(2) the applicant or license holder; and

(3) the officer who presides at the hearing.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1146, Sec. 11.23, eff. September 1, 2009.

Sec. 12.098. LIABILITY. A member of the medical advisory board,

a member of a panel, a person who makes an examination for or on

the recommendation of the medical advisory board, or a physician

who reports to the medical advisory board or a panel under

Section 12.096 is not liable for a professional opinion,

recommendation, or report made under this subchapter.

Added by Acts 1995, 74th Leg., ch. 165, Sec. 9, eff. Sept. 1,

1995.

SUBCHAPTER I. TEXAS VOLUNTEER HE