Texas Mould Licensing Law
Takes Effect On Sept. 1, 2003

This is the text of the newly-enacted [June, 2003] Texas legislation which requires the licensing of Texas mould assessors [e.g., mould inspectors and mould testers] and of Texas mould remediators [mould contractors].

AN ACT

relating to the regulation of mould assessors and remediators, civil  liability for mould remediation, and insurance coverage on mould claims; providing civil and administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1.  Subtitle B, Title 12, Occupations Code, is  amended by adding Chapter 1958 to read as follows:

CHAPTER 1958.  mould ASSESSORS AND REMEDIATORS

SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 1958.001.  DEFINITIONS.  In this chapter:                         
(1)  "Board" means the Texas Board of Health.                         
(2)  "Commissioner" means the commissioner of public health.        
(3)  "Department" means the Texas Department of Health.               
(4)  "License" means a license issued under this chapter.           
(5)  "mould" means any living or dead fungi or related products or parts, including spores, hyphae, and mycotoxins.
(6)  "mould assessment" means:                                         
        (A)  an inspection, investigation, or survey of a dwelling or other structure to provide the owner or
               occupant with information regarding the presence, identification, or evaluation of mould;
        (B)  the development of a mould management plan or remediation protocol; or
        (C)  the collection or analysis of a mould sample.                    
(7)  "mould remediation" means the removal, cleaning, sanitizing, demolition, or other treatment, including preventive activities, of mould or mould-contaminated matter that was not purposely grown at that location.

Sec. 1958.002.  SCOPE OF AUTHORITY

(A)  This chapter applies only to the regulation of mould-related activities that
affect indoor air quality, including a mould-related activity performed by a third party for compensation at a property owned or operated by a governmental entity.
(B)  This chapter does not apply to:                                   
(1)  the following activities when not conducted for the purpose of mould assessment or mould
           remediation:
          (A)  routine cleaning;                                               
          (B)  the diagnosis, repair, cleaning, or replacement of plumbing, heating, ventilation, air
                 conditioning, electrical, or air duct systems or appliances;
          (C)  commercial or residential real estate
                 inspections; and        
          (D)  the incidental discovery or emergency containment of potential mould contamination during
                 the conduct or  performance of services listed in this subsection;

(2)  the repair, replacement, or cleaning of construction materials during the building phase of the
construction of a structure;
(3)  the standard performance of custodial activities for, preventive maintenance of, and the routine assessment of  property owned or operated by a governmental entity; or
(4)  a pest control inspection conducted by a person regulated under Chapter 1951.

[Sections 1958.003-1958.050 reserved for expansion]

SUBCHAPTER B.  POWERS AND DUTIES

Sec. 1958.051.  GENERAL POWERS AND DUTIES OF DEPARTMENT;
SCOPE OF AUTHORITY.  The department shall administer this chapter to protect the public from the adverse health effects of mould.

Sec. 1958.052.  PUBLIC EDUCATION PROGRAM.  (a)  The department shall conduct a statewide education and outreach program regarding the importance of, and ways to improve, air quality in buildings, including the importance of, and the ways to recognize, prevent, control, and mitigate, mould occurrence and other indoor air quality factors that adversely affect human health.
(b)  The program may include:                                          
(1)  the development and distribution of information to the public concerning indoor air quality and mould;
(2)  educational programs;                                            
(3)  informational or educational exhibits; and                       
(4)  any other methods of education or communication that the department considers appropriate.
(c)  The department may contract with governmental entities or other persons to provide the program.

Sec. 1958.053.  GENERAL RULEMAKING AUTHORITY.  The board shall adopt substantive and procedural rules as necessary or desirable for the board, department, and commissioner to discharge their powers and duties under this chapter.

Sec. 1958.054.  RULES REGARDING PERFORMANCE STANDARDS AND WORK PRACTICES.  The board by rule shall establish minimum performance standards and work practices for conducting a mould assessment or mould remediation in this state.

Sec. 1958.055.  FEES. 
(a)  The board shall establish reasonable and necessary fees to administer this chapter, including fees for licenses, registrations, and examinations.  The board shall set the fees in an amount sufficient to recover the costs of administering this chapter, not to exceed the caps established under Subsection (b).
(b)  A fee set under this section may not exceed:                      
(1)  $400 for a license issued to an individual;                      
(2)  $750 for a license issued to a person who is not an individual; and
(3)  $60 for a registration issued to an employee of a license holder.

Sec. 1958.056.  INSPECTIONS. 
(a)  The department shall conduct inspections as necessary to ensure compliance with this chapter.
(b)  The board shall adopt rules regarding compliance investigations.

Sec. 1958.057.  COMPLAINTS. 
The department shall investigate any complaint regarding mould-related activities.

Sec. 1958.058.  SAFETY STANDARDS. 
The board may develop and establish mould safety standards for license holders if appropriate scientific information exists regarding the effect of mould.

Sec. 1958.059.  CODE OF ETHICS.  The board by rule shall adopt a code of ethics for license holders that promotes the education of mould assessors and mould remediators concerning the ethical, legal, and business principles that should govern their conduct.

[Sections 1958.060-1958.100 reserved for expansion]

SUBCHAPTER C.  LICENSE AND REGISTRATION REQUIREMENTS.

Sec. 1958.101.  LICENSE REQUIRED; RULES.  (a)  A person may not engage in:
(1)  mould assessment unless the person holds a mould assessment license; or
(2)  mould remediation unless the person holds a mould remediation license.
(b)  The board shall adopt rules regarding:                            
      (1)  the scope of mould-related work for which a license is required, including the supervision of
       employees or other persons by license holders; and
      (2)  renewal requirements for a license issued under this chapter.  

Sec. 1958.102.  EXEMPTIONS. 
(a)  An owner or tenant, or a managing agent or employee of an owner or tenant, is not required to be licensed under this chapter to perform mould assessment or mould remediation on property owned or leased by the owner or tenant. This exemption does not apply:
   (1)  if the managing agent or employee engages in the business of performing mould assessment or mould remediation for the public;
   (2)  if the mould remediation is performed in an area in which the mould contamination affects a total surface area of 25
         contiguous square feet or more; or
   (3)  to a person who is exempt under Subsection (e).                  
(b)  An employee of a license holder is not required to be licensed under this chapter to perform mould assessment or mould
remediation while supervised by the license holder, as provided by rules adopted under Section 1958.101.
(c)  A person is not required to be licensed under this chapter to perform mould remediation in an area in which the mould
contamination affects a total surface area for the project of less than 25 contiguous square feet.
(d)  A person is not required to be licensed under this chapter to perform mould assessment or mould remediation in a
one-family or two-family dwelling that the person constructed or improved if the person performs the mould assessment or mould
remediation at the same time the person performs the construction or improvement or at the same time the person performs repair work
on the construction or improvement.  This exemption does not apply if the person engages in the business of performing mould assessment or mould remediation for the public.
(e)  An owner, or a managing agent or employee of an owner, is not required to be licensed under this chapter to perform mould
assessment or mould remediation on a residential property owned by that person with fewer than 10 dwelling units.  This exemption does
not apply if the managing agent or employee engages in the business of performing mould assessment or mould remediation for the public.

Sec. 1958.103.  REGISTRATION REQUIREMENTS FOR EMPLOYEES.
The board may adopt rules to require the registration of employees supervised by license holders.

Sec. 1958.104.  RULES REGARDING LICENSE APPLICATION. 
The board shall adopt rules regarding a license application.  The board shall adopt rules that establish minimum requirements for a license, including:
(1)  the type of license;                                             
(2)  the term of the license;                                         
(3)  the qualifications for the license, including any previous training required under Section 1958.106;
(4)  renewal requirements for the license, including ongoing continuing education required under Section 1958.106; and
(5)  liability insurance requirements for the license.     
           
Sec. 1958.105.  EXAMINATION. 
The department may require that an applicant for a license pass a competency examination to
qualify for the license.

Sec. 1958.106.  TRAINING; CONTINUING EDUCATION. 
(a)  The board shall adopt rules regarding training required under this
       chapter and continuing education required for a license holder under this chapter.
(b)  The rules may include requirements regarding training  and continuing education providers, including rules establishing:
       (1)  accreditation by the department;                                 
       (2)  curriculum requirements; and                                     
       (3)  qualifications.   
                                               
Sec. 1958.107.  RECIPROCITY. 
The board may adopt rules that facilitate reciprocity and communication with other states that
have a similar licensing program.

[Sections 1958.108-1958.150 reserved for expansion]

SUBCHAPTER D.  PRACTICE BY LICENSE HOLDER

Sec. 1958.151.  SCOPE OF WORK ANALYSIS. 
(a)  A license holder who intends to perform mould assessment on a mould remediation project shall prepare a work analysis for the project.  The license holder shall provide the analysis to the client before the mould remediation begins.
(b)  The work analysis must specify:                                   
      (1)  the rooms or areas where the work will be performed;           
      (2)  the quantities of materials to be removed or cleaned at the project;
      (3)  the proposed methods for each type of remediation in each type of area in the project; and
      (4)  the proposed clearance criteria for each type of remediation in each type of area in the project.

Sec. 1958.152.  REMEDIATION WORK PLAN. 
(a)  A license holder who intends to perform mould remediation shall prepare a work plan providing instructions for the remediation efforts to be performed for the mould remediation project.  The license holder shall provide the work plan to the client before the mould remediation begins.
(b)  The license holder shall maintain a copy of the work plan at the job site where the remediation is being performed.

Sec. 1958.153.  NOTICE OF PROJECT. 
(a)  Except as provided by Subsection (b), not later than the fifth day before the date on
which a license holder starts mould remediation at a property, the license holder shall notify the department in writing about the project.
(b)  In an emergency, notice to the department under Subsection (a) may be made verbally but must be made not later than
the next business day after the license holder identifies the emergency. For purposes of this subsection, an emergency exists if
a delay in mould remediation services in response to a water damage occurrence would increase mould contamination.
(c)  The board shall adopt rules to implement this section, including rules:
(1)  describing the information that must be provided in the notice; and
(2)  authorizing verbal notification to the department in an emergency.

Sec. 1958.154.  CERTIFICATE OF mould REMEDIATION; DUTY OF PROPERTY OWNER. 
(a)  Not later than the 10th day after the date on which a license holder completes mould remediation at a property, the license holder shall provide a certificate of mould remediation to the property owner.  The certificate must include a statement by a mould assessment license holder that, based on visual, procedural, and analytical evaluation, the mould contamination identified for the project has been remediated as outlined in the mould management plan or remediation protocol.  If the mould assessment license holder determines that the underlying cause of the mould has been remediated so that it is reasonably certain that the mould will not return from that remediated cause, the mould assessment license holder shall indicate on the certificate that the underlying cause of the mould has been remediated.
(b)  If a property owner sells property, the property owner shall provide to the buyer a copy of each certificate that has been
issued for the property under this section.
(c)  The board shall adopt rules to implement this section, other than rules described by Subsection (d).
(d)  The commissioner of insurance shall adopt rules describing the information that must be provided in the certificate
of mould remediation.  In adopting the rules, the commissioner shall design the certificate as necessary to comply with any requirements
imposed under Article 21.21-11, Insurance Code.

Sec. 1958.155.  CONFLICT OF INTEREST; DISCLOSURE REQUIRED. 
(a)  A license holder may not perform both mould assessment and mould remediation on the same project.
(b)  A person may not own an interest in both the entity that performs assessment services and an entity that performs
remediation services on the same project.
(c)  A license holder who is not an individual shall disclose to the department the name, address, and occupation of each person
that has an ownership interest in the license holder.  The license holder shall report any changes in ownership to the department.  The
board shall adopt rules to implement this section, including rules regarding the form of the disclosure and the time required to make
disclosures or to report a change in ownership.

Sec. 1958.156.  RECORD REQUIREMENTS; DUTIES OF mould REMEDIATORS. 
(a)  A mould remediator shall maintain a record regarding each mould remediation performed for at least three years after the date of completion of the mould remediation on a property.
(b)  The mould remediator shall make the record available for inspection by the department or any law enforcement entity.
(c)  The record must contain:                                          
      (1)  photographs of the scene of the mould remediation taken before and after the remediation;
      (2)  the written contract between the mould remediator or any other party regarding the mould remediation;
      (3)  all invoices issued regarding the mould remediation; and        
      (4)  any other material required by the department.                   
(d)  Not later than one week after completion of a mould remediation, the mould remediator license holder shall provide the
property owner with copies of all photographs required by this section.

Sec. 1958.157.  OFFICE LOCATION.  A license holder shall maintain an office in this state.

[Sections 1958.158-1958.200 reserved for expansion]

SUBCHAPTER E.  DISCIPLINARY PROCEDURES

Sec. 1958.201.  DISCIPLINARY ACTION.
If a license holder violates this chapter or an order or rule adopted under this chapter, the department, after providing the person with notice and an opportunity for a hearing, shall take one or more of the following actions:
(1)  revoke, suspend, or refuse to renew the license;                 
(2)  impose an administrative penalty;                                
(3)  bring an action to collect a civil penalty; or                   
(4)  reprimand the person.                                            

[Sections 1958.202-1958.250 reserved for expansion]

SUBCHAPTER F.  ADMINISTRATIVE PENALTY

Sec. 1958.251.  IMPOSITION OF ADMINISTRATIVE PENALTY. 
The commissioner may impose an administrative penalty on a person who violates this chapter or a rule adopted or order issued under this chapter.

Sec. 1958.252.  AMOUNT OF PENALTY.
(a)  The amount of an administrative penalty may not exceed $5,000 for each violation.  Each day a violation continues under Section 1958.101 or 1958.155 may be considered a separate violation for purposes of imposing a penalty.
(b)  In determining the amount of the penalty, the commissioner shall consider:
      (1)  whether the violation was committed knowingly, intentionally, or fraudulently;
      (2)  the seriousness of the violation;                                
      (3)  any hazard created to the health and safety of the public;     
      (4)  the person's history of previous violations; and                 
      (5)  any other matter that justice may require.      
                 
Sec. 1958.253.  EXCEPTION TO ADMINISTRATIVE PENALTY. 
(a)  The commissioner may choose not to impose an administrative penalty under this subchapter if, not later than the 10th day after the date of written notice of the violation under Section 1958.254, the person provides conclusive evidence that the circumstances giving rise to the violation have been corrected and all actual damages are paid.
(b)  This section does not apply to a violation alleged under Section 1958.101 or 1958.155.

Sec. 1958.254.  NOTICE; OPPORTUNITY FOR HEARING; ORDER. 
(a) The commissioner may impose an administrative penalty under this subchapter only after the person charged with a violation is given a written notice and the opportunity for a hearing.
(b)  The written notice must state the facts that constitute the alleged violation and the law or rule on which the violation is
based.
(c)  If a hearing is held, the commissioner shall make findings of fact and issue a written decision as to:
     (1)  the occurrence of the violation; and                             
     (2)  the amount of any penalty that is warranted.                     
(d)  If the person charged with a violation fails to exercise the opportunity for a hearing, the commissioner, after determining
that a violation occurred and the amount of the penalty that is warranted, may impose a
 

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