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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 penalty and shall issue an order requiring
the person to pay any penalty imposed.
(e) Not later than the 30th day after the date the commissioner issues
an order after determining that a violation
occurred, the commissioner shall inform the person charged with the
violation of the amount of any penalty imposed.
(f) The commissioner may consolidate a hearing under this section
with another proceeding.
Sec. 1958.255. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Not later
than the 30th day after the date the commissioner's decision or order
becomes final as provided by Section 2001.144,
Government Code, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the fact of the
violation, the amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under Subsection
(a)(2) may stay enforcement of the penalty by:
(1) paying the penalty to the commissioner for placement in an escrow
account; or
(2) giving the commissioner a bond in a form approved by the
commissioner that:
(A) is for the amount of the penalty; and
(B) is effective until judicial review of the commissioner's decision
or order is final.
Sec. 1958.256. COLLECTION OF PENALTY. At the request of the
commissioner, the attorney general may bring a civil action to
recover an administrative penalty imposed under this subchapter.
Sec. 1958.257. JUDICIAL REVIEW. Judicial review of a decision or
order of the commissioner imposing a penalty under this
subchapter is instituted by filing a petition with a district court in
Travis County and is under the substantial evidence rule as
provided by Subchapter G, Chapter 2001, Government Code.
Sec. 1958.258. REMITTANCE OF PENALTY AND INTEREST OR RELEASE OF BOND.
If after judicial review the administrative
penalty is reduced or is not upheld by the court, the commissioner shall:
(1) remit the appropriate amount, plus accrued interest, to the person
not later than the 30th day after the date
of the determination, if the person paid the penalty; or
(2) execute a release of the bond, if the person gave a bond.
[Sections
1958.259-1958.300 reserved for expansion]
SUBCHAPTER G.
OTHER PENALTIES; ENFORCEMENT PROVISIONS;
EXEMPTIONS FROM
CIVIL LIABILITY
Sec. 1958.301.
CIVIL PENALTY. (a) A person who violates this chapter or a rule adopted
under this chapter is liable for a
civil penalty in an amount not to exceed $2,000 for the first violation or
$10,000 for a second or later violation.
(b) The commissioner may request the attorney general or the district,
county, or city attorney having jurisdiction to bring an
action to collect a civil penalty under this section.
Sec. 1958.302. INJUNCTIVE RELIEF. The commissioner may request the
attorney general or the district, county, or city
attorney having jurisdiction to bring an action for a restraining order,
injunction, or other relief the court determines is
appropriate if it appears to the department that a person is violating or
has violated this chapter or a rule adopted under this
chapter.
Sec. 1958.303. EXEMPTION FROM CIVIL LIABILITY FOR CERTAIN
PROPERTY OWNERS. A property owner is not liable for damages related to
mould remediation on a property if:
(1) a certificate of mould remediation has been issued under this
chapter for that property; and
(2) the damages accrued on or before the date of the issuance of the
certificate.
Sec. 1958.304. EXEMPTION FROM CIVIL LIABILITY FOR CERTAIN GOVERNMENTAL
ENTITIES. A person is not liable in a civil lawsuit
for damages related to a decision to allow occupancy of a property after
mould remediation has been performed on the property if:
(1) a certificate of mould remediation has been issued under this
chapter for the property;
(2) the property is owned or occupied by a governmental entity,
including a school; and
(3) the decision was made by the owner, occupier, or any person
authorized by the owner or occupier to make the decision.
SECTION 2. Subchapter B, Chapter 21, Insurance Code, is amended by adding
Article 21.21-11 to read as follows:
Art. 21.21-11. PROHIBITION OF CERTAIN UNDERWRITING DECISIONS BASED ON
PREVIOUS mould CLAIM OR DAMAGE
Sec. 1. DEFINITIONS. In this article:
(1) "Insurer" means an insurance company, reciprocal or interinsurance
exchange, mutual insurance company, capital
stock company, county mutual insurance company, farm mutual insurance
company, Lloyd's plan, or other legal entity authorized
to write residential property insurance in this state. The term includes
an affiliate, as described by Section 823.003(a), if that
affiliate is authorized to write and is writing residential property
insurance in this state. The term does not include:
(A) an eligible surplus lines insurer regulated under Chapter 981;
(B) the Texas Windstorm Insurance Association under Article 21.49; or
(C) the FAIR Plan Association under Article 21.49A.
(2) "mould" means any living or dead fungi or related products or
parts, including spores, hyphae, and mycotoxins.
(3) "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.
(4) "Residential property insurance" means insurance against damage to
or loss of real or tangible personal property at a
fixed location provided in a homeowners insurance policy or residential
fire and allied lines insurance policy.
Sec. 2. APPLICABILITY. This article applies to each insurer that
writes residential property insurance in this state.
Sec. 3. PROHIBITION. An insurer may not make an underwriting decision
regarding a residential property insurance
policy based on previous mould damage or a claim for mould damage if:
(1) the applicant for insurance coverage has property eligible for
coverage under a residential property policy;
(2) the property has had mould damage;
(3) mould remediation has been performed on the property; and
(4) the property was:
(A) remediated, as evidenced by a certificate of mould remediation
issued to the property owner under Section
1958.154, Occupations Code, that establishes that the underlying cause of
the mould at the property has been remediated; or
(B) inspected by an independent assessor or adjustor who determined,
based on the inspection, that the property
does not contain evidence of mould damage.
Sec. 4. RULES. The commissioner shall adopt rules as necessary to
implement this article.
Sec. 5. PENALTY. An insurer that violates this article is subject,
after notice and opportunity for hearing, to sanctions as
provided by Chapters 82, 83, and 84 of this code.
SECTION 3. The Texas Board of Health shall adopt the rules required by
Chapter 1958, Occupations Code, as added by this Act,
not later than
April 1, 2004.
SECTION 4. (a) Except as provided by Subsection (b) of this section,
this Act takes effect September 1, 2003.
(b) A person is not required to comply with Section 1958.101(a),
Occupations Code, as added by this Act, until
appropriate rules have been adopted under Section 3 of this Act.
______________________________ ___________________________
President of the Senate Speaker of the House
I certify that H.B. No. 329 was passed by the House on April 30, 2003, by
a non-record vote; that the House refused to concur in
Senate amendments to H.B. No. 329 on May 28, 2003, and requested the
appointment of a conference committee to consider the differences
between the two houses; and that the House adopted the conference
committee report on H.B. No. 329 on June 1, 2003, by a non-record
vote.
____________________________
Chief Clerk of the House
I certify that H.B. No. 329 was passed by the Senate, with amendments, on
May 26, 2003, by a viva-voce vote; at the request of
the House, the Senate appointed a conference committee to consider the
differences between the two houses; and that the Senate adopted
the conference committee report on H.B. No. 329 on June 1, 2003, by a
viva-voce vote.
_________________________
Secretary of the Senate
APPROVED:
__________________
Date
__________________
Governor |
