By Hochberg H.B. No. 299
74R1683 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to assessment of administrative penalties for violations
1-3 of rules or statutes applicable to personal care facilities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 247.002, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 247.002. DEFINITIONS. In this chapter:
1-8 (1) "Board" means the Texas Board of Health.
1-9 (2) "Department" means the Texas Department of Health.
1-10 (3) "Commissioner" means the commissioner of public
1-11 health.
1-12 (4) "Personal care facility" means an establishment,
1-13 including a board and care home, that:
1-14 (A) furnishes, in one or more facilities, food
1-15 and shelter to four or more persons who are unrelated to the
1-16 proprietor of the establishment; and
1-17 (B) provides personal care services.
1-18 (5) <(4)> "Personal care services" means:
1-19 (A) assistance with meals, dressing, movement,
1-20 bathing, or other personal needs or maintenance;
1-21 (B) the administration of medication by a person
1-22 licensed to administer medication or the assistance with or
1-23 supervision of medication; or
1-24 (C) general supervision or oversight of the
2-1 physical and mental well-being of a person who needs assistance to
2-2 maintain a private and independent residence in a personal care
2-3 facility or who needs assistance to manage the person's personal
2-4 life, regardless of whether a guardian has been appointed for the
2-5 person.
2-6 (6) <(5)> "Qualified religious society" means a
2-7 church, synagogue, or other organization or association that is
2-8 organized primarily for religious purposes and that:
2-9 (A) has been in existence in this state for at
2-10 least 35 years; and
2-11 (B) does not distribute any of its income to its
2-12 members, officers, or governing body other than as reasonable
2-13 compensation for services or reimbursement of expenses.
2-14 SECTION 2. Subchapter C, Chapter 247, Health and Safety
2-15 Code, is amended by adding Sections 247.0451-245.0456 to read as
2-16 follows:
2-17 Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) The department
2-18 may assess an administrative penalty against a person who violates
2-19 this chapter or a rule adopted under this chapter for each
2-20 violation.
2-21 (b) The penalty may not exceed $10,000 for each violation.
2-22 Each day of a continuing violation constitutes a separate
2-23 violation.
2-24 (c) In determining the amount of an administrative penalty
2-25 assessed under this section, the board shall consider:
2-26 (1) the seriousness of the violation;
2-27 (2) the history of previous violations;
3-1 (3) the amount necessary to deter future violations;
3-2 (4) efforts made to correct the violation; and
3-3 (5) any other matters that justice may require.
3-4 (d) All proceedings for the assessment of an administrative
3-5 penalty under this chapter are subject to Chapter 2001, Government
3-6 Code.
3-7 Sec. 247.0452. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
3-8 If, after investigation of a possible violation and the facts
3-9 surrounding that possible violation, the department determines that
3-10 a violation has occurred, the department shall issue a preliminary
3-11 report stating the facts on which the conclusion that a violation
3-12 occurred is based, recommending that an administrative penalty
3-13 under Section 247.0451 be imposed on the person charged, and
3-14 recommending the amount of that proposed penalty. The department
3-15 shall base the recommended amount of the proposed penalty on the
3-16 factors set forth in Section 247.0451(c).
3-17 Sec. 247.0453. NOTICE; REQUEST FOR HEARING; ORDER. (a) Not
3-18 later than the 14th day after the date on which the preliminary
3-19 report under Section 247.0452 is issued, the department shall give
3-20 written notice of the violation to the person charged. The notice
3-21 shall include:
3-22 (1) a brief summary of the charges;
3-23 (2) a statement of the amount of the penalty
3-24 recommended; and
3-25 (3) a statement of the right of the person charged to
3-26 a hearing on the occurrence of the violation, the amount of the
3-27 penalty, or both the occurrence of the violation and the amount of
4-1 the penalty.
4-2 (b) Not later than the 20th day after the date on which the
4-3 notice is received, the person charged may accept the determination
4-4 of the department made under Section 247.0452, including the
4-5 recommended penalty, or make a written request for a hearing on
4-6 that determination.
4-7 (c) If the person charged with the violation accepts the
4-8 determination of the department, the commissioner or the
4-9 commissioner's designee shall issue an order approving the
4-10 determination and ordering that the person pay the recommended
4-11 penalty.
4-12 Sec. 247.0454. HEARING; ORDER. (a) If the person charged
4-13 fails to respond in a timely manner to the notice under Section
4-14 247.0453(b) or if the person requests a hearing, the commissioner
4-15 or the commissioner's designee shall:
4-16 (1) set a hearing;
4-17 (2) give written notice of the hearing to the person;
4-18 and
4-19 (3) designate a hearings examiner to conduct the
4-20 hearing.
4-21 (b) The hearings examiner shall make findings of fact and
4-22 conclusions of law and shall promptly issue to the commissioner a
4-23 proposal for decision as to the occurrence of the violation and a
4-24 recommendation as to the amount of the proposed penalty if a
4-25 penalty is determined to be warranted.
4-26 (c) Based on the findings of fact and conclusions of law and
4-27 the recommendations of the hearings examiner, the commissioner by
5-1 order may find that a violation has occurred and may assess a
5-2 penalty, or may find that no violation has occurred.
5-3 Sec. 247.0455. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
5-4 JUDICIAL REVIEW; REFUND. (a) The commissioner or the
5-5 commissioner's designee shall give notice of the commissioner's
5-6 order under Section 247.0454(c) to the person charged. The notice
5-7 must include:
5-8 (1) separate statements of the findings of fact and
5-9 conclusions of law;
5-10 (2) the amount of any penalty assessed; and
5-11 (3) a statement of the right of the person charged to
5-12 judicial review of the commissioner's order.
5-13 (b) Not later than the 30th day after the date on which the
5-14 decision is final as provided by Chapter 2001, Government Code, the
5-15 person charged shall:
5-16 (1) pay the penalty in full; or
5-17 (2) if the person files a petition for judicial review
5-18 contesting the fact of the violation, the amount of the penalty, or
5-19 both the fact of the violation and the amount of the penalty:
5-20 (A) forward the amount assessed to the
5-21 department for deposit in an escrow account; or
5-22 (B) in lieu of payment into escrow, post with
5-23 the department a supersedeas bond for the amount of the penalty in
5-24 a form approved by the commissioner and effective until judicial
5-25 review of the decision is final.
5-26 (c) A person charged with a penalty who is financially
5-27 unable to comply with Subsection (b)(2) is entitled to judicial
6-1 review if the person files with the court, as part of the person's
6-2 petition for judicial review, a sworn statement that the person is
6-3 unable to meet the requirements of that subsection.
6-4 (d) Except as provided by Subsection (c), failure to forward
6-5 the amount assessed or post the bond with the department in the
6-6 manner and within the period prescribed by Subsection (b) results
6-7 in a waiver of legal rights to judicial review. If the person
6-8 charged fails to forward the amount assessed or post the bond as
6-9 required by Subsection (b), the department or the attorney general
6-10 may bring an action for the collection of the penalty.
6-11 (e) Judicial review of the commissioner's order assessing
6-12 the penalty is subject to the substantial evidence rule and shall
6-13 be instituted by filing a petition with a Travis County district
6-14 court, as provided by Chapter 2001, Government Code.
6-15 (f) If, after judicial review, the penalty is reduced or not
6-16 assessed, the commissioner or the commissioner's designee shall
6-17 remit to the person charged the appropriate amount, plus accrued
6-18 interest if the penalty has been paid, or shall execute a release
6-19 of the bond if a supersedeas bond has been posted. The accrued
6-20 interest on amounts remitted by the commissioner under this
6-21 subsection shall be paid at a rate equal to the rate charged on
6-22 loans to depository institutions by the New York Federal Reserve
6-23 Bank, and shall be paid for the period beginning on the date that
6-24 the assessed penalty is paid to the commissioner and ending on the
6-25 date the penalty is remitted.
6-26 Sec. 247.0456. PENALTY DEPOSITED TO STATE TREASURY. A civil
6-27 or administrative penalty collected under this chapter shall be
7-1 deposited in the state treasury to the credit of the general
7-2 revenue fund.
7-3 SECTION 3. (a) This Act takes effect September 1, 1995.
7-4 (b) An administrative penalty assessed under Sections
7-5 247.0451-245.0455, Health and Safety Code, as added by this Act,
7-6 may be assessed only for a violation of Chapter 247, Health and
7-7 Safety Code, or a rule adopted under that chapter that occurs on or
7-8 after the effective date of this Act. A violation that occurs
7-9 before the effective date of this Act is governed by the law in
7-10 effect at the time the violation occurred, and that law is
7-11 continued in effect for that purpose.
7-12 SECTION 4. The importance of this legislation and the
7-13 crowded condition of the calendars in both houses create an
7-14 emergency and an imperative public necessity that the
7-15 constitutional rule requiring bills to be read on three several
7-16 days in each house be suspended, and this rule is hereby suspended.