IMF S.B. 407 75(R)BILL ANALYSIS STATE AFFAIRS S.B. 407 By: Harris 4-9-97 Committee Report (Unamended) BACKGROUND Currently, Chapter 245 of the Health and Safety Code governs the regulation of abortion facilities by the Texas Department of Health (department). The department lacks the authority to impose administrative penalties and revoke or suspend licenses in emergency situations under this chapter. The department has such authority in its regulation over other health facilities. This bill would: modify the minimum standards for abortion facilities; authorize the release of information and records by the department to appropriate state licensing boards; and provide for the immediate suspension or revocation by the department of a person's license. Further, it provides for administrative penalties, administrative hearings, judicial review of such hearings, enforcement of sanctions imposed by Chapter 245, and cost recovery arising from such enforcement by the department and the attorney general. PURPOSE This bill modifies the minimum standards required for abortion facilities, authorizes the release of information and records by the Texas Department of Health to appropriate state licensing boards, and sets forth the guidelines for the immediate suspension or revocation by the department of a person's license to operate an abortion facility. The bill also provides for administrative penalties, administrative hearings, judicial review of such hearings, enforcement of sanctions, and cost recovery arising from such enforcement. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 245.010(c), Health and Safety Code, to include quality assurance, and the management, ownership, and control of an abortion facility, as standards that are prohibited from being more stringent than Medicare certification standards. SECTION 2. Amends Section 245.011(d), Health and Safety Code, to include release of information to appropriate licensing boards for enforcement purposes to the list of exceptions to the confidentiality of department information and records. SECTION 3. Amends, Section 245.012, Health and Safety Code, by adding subsection (c) authorizing the department to immediately suspend or revoke a license of an abortion facility when the health and safety of persons are threatened. Provides for a right to a hearing for a person whose license is revoked or suspended within 14 days of the effective date of the revocation or suspension. SECTION 4. Amends Chapter 245, Health and Safety Code, by adding Sections 245.017245.022, as follows: Sec. 245.017. ADMINISTRATIVE PENALTY. Authorizes the board to impose administrative penalties, up to $1,000 per violation per day, for violations of this chapter or rules adopted under this chapter. Provides that all administrative penalty proceedings are subject to Section 2001, Government Code. Sec. 245.018. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. Sets forth the guidelines requiring the department to give notice to an alleged violator of a report recommending an administrative penalty. Authorizes the person notified by the department to either accept the determination of the department or make a written request for a hearing on that determination. If the notified person accepts the department's determination, the commissioner or their designee is required to issue an order approving the determination and ordering the person to pay the recommended penalty. Sec. 245.019. HEARING; ORDER. If the notified person requests a hearing, the commissioner or their designee is required to set a hearing, give written notice of the hearing, and designate a hearings examiner to conduct the hearing. Requires the hearings examiner to make findings of fact and conclusions of law and promptly issue to the commissioner a proposal for a decision as to the occurrence of the violation and a recommendation as to the amount of the proposed penalty, if any. Based on this proposal for decision, allows the commissioner by order to find that a violation has occurred and assess a penalty, or find that no violation has occurred. Sec. 245.020. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. Sets forth the guidelines and conditions for required notice by the commissioner of public health or the commissioner's designee for an order issued by the commissioner. Requires a violator to pay a penalty and/or file a petition for judicial review regarding the occurrence of a violation and/or the amount of a penalty within 30 days after a final decision. Allows for the stay of enforcement of the penalty within the 30 days by payment, supersedeas bond, or sworn affidavit of financial inability by the person subject to the order. Sets forth the guidelines for contesting a sworn affidavit of financial inability. Authorizes the department to refer the matter to the attorney general for collection of the amount of the penalty if the person does not pay the amount of the penalty and if the enforcement is not stayed. States the procedures for judicial review of the commissioner's order. Allows the court to uphold or reduce a penalty, or find that no violation occurred, in a review of the order. Sets forth the guidelines the court is required to follow for post-judgment proceedings upon final judgment of the court. Sec. 245.021. PENALTY DEPOSITED TO STATE TREASURY. Requires a penalty collected under this chapter to be deposited in the state treasury to the credit of the general revenue fund. Sec. 245.022. RECOVERY OF COSTS. Allows the department to recover costs arising from an administrative hearing. Allows the attorney general to recover costs arising from enforcement of an injunction, or civil and/or administrative penalties arising under this chapter. Defines "reasonable expenses and costs" to include investigative costs, attorney's fees, witness fees, and deposition expenses. SECTION 5. Effective date: September 1, 1997. SECTION 6. Emergency clause.