By Maxey H.B. No. 1247
75R5108 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to regulation of special care facilities; providing an
1-3 administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 248.026, Health and Safety Code, is
1-6 amended by adding Subsection (c) to read as follows:
1-7 (c) In adopting rules under Subsection (a)(2), the board
1-8 shall adopt rules that require training and education for
1-9 professional and nonprofessional personnel and volunteers. The
1-10 training and education must be at least as comprehensive as the
1-11 training and education required for analogous personnel and
1-12 volunteers providing services at a home and community support
1-13 services agency that provides hospice services under Chapter 142.
1-14 SECTION 2. Subchapter C, Chapter 248, Health and Safety
1-15 Code, is amended by adding Sections 248.056-248.061 to read as
1-16 follows:
1-17 Sec. 248.056. ADMINISTRATIVE PENALTY. (a) The department
1-18 may assess an administrative penalty against a person who violates
1-19 this chapter or a rule adopted under this chapter.
1-20 (b) The penalty may not exceed $1,000 for each violation.
1-21 Each day of a continuing violation constitutes a separate
1-22 violation.
1-23 (c) In determining the amount of an administrative penalty
1-24 assessed under this section, the department shall consider:
2-1 (1) the seriousness of the violation;
2-2 (2) the history of previous violations;
2-3 (3) the amount necessary to deter future violations;
2-4 (4) efforts made to correct the violation; and
2-5 (5) any other matters that justice may require.
2-6 (d) All proceedings for the assessment of an administrative
2-7 penalty under this chapter are subject to Chapter 2001, Government
2-8 Code.
2-9 Sec. 248.057. NOTICE; REQUEST FOR HEARING. (a) If, after
2-10 investigation of a possible violation and the facts surrounding
2-11 that possible violation, the department determines that a violation
2-12 has occurred, the department shall give written notice of the
2-13 violation to the person alleged to have committed the violation.
2-14 The notice must include:
2-15 (1) a brief summary of the alleged violation;
2-16 (2) a statement of the amount of the proposed penalty
2-17 based on the factors set forth in Section 248.056(c); and
2-18 (3) a statement of the person's right to a hearing on
2-19 the occurrence of the violation, the amount of the penalty, or both
2-20 the occurrence of the violation and the amount of the penalty.
2-21 (b) Not later than the 20th day after the date on which the
2-22 notice is received, the person notified may accept the
2-23 determination of the department made under this section, including
2-24 the proposed penalty, or make a written request for a hearing on
2-25 that determination.
2-26 (c) If the person notified of the violation accepts the
2-27 determination of the department or if the person fails to respond
3-1 in a timely manner to the notice, the commissioner of public health
3-2 or the commissioner's designee shall issue an order approving the
3-3 determination and ordering that the person pay the proposed
3-4 penalty.
3-5 Sec. 248.058. HEARING; ORDER. (a) If the person notified
3-6 requests a hearing, the department shall:
3-7 (1) set a hearing;
3-8 (2) give written notice of the hearing to the person;
3-9 and
3-10 (3) designate a hearings examiner to conduct the
3-11 hearing.
3-12 (b) The hearings examiner shall make findings of fact and
3-13 conclusions of law and shall promptly issue to the commissioner of
3-14 public health or the commissioner's designee a proposal for
3-15 decision as to the occurrence of the violation and a recommendation
3-16 as to the amount of the proposed penalty if a penalty is determined
3-17 to be warranted.
3-18 (c) Based on the findings of fact and conclusions of law and
3-19 the recommendations of the hearings examiner, the commissioner of
3-20 public health or the commissioner's designee by order may find that
3-21 a violation has occurred and may assess a penalty, or may find that
3-22 no violation has occurred.
3-23 Sec. 248.059. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
3-24 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
3-25 the order under Section 248.058(c) to the person alleged to have
3-26 committed the violation. The notice must include:
3-27 (1) separate statements of the findings of fact and
4-1 conclusions of law;
4-2 (2) the amount of any penalty assessed; and
4-3 (3) a statement of the right of the person to judicial
4-4 review of the order.
4-5 (b) Not later than the 30th day after the date on which the
4-6 decision is final as provided by Chapter 2001, Government Code, the
4-7 person shall:
4-8 (1) pay the penalty;
4-9 (2) pay the penalty and file a petition for judicial
4-10 review contesting the occurrence of the violation, the amount of
4-11 the penalty, or both the occurrence of the violation and the amount
4-12 of the penalty; or
4-13 (3) without paying the penalty, file a petition for
4-14 judicial review contesting the occurrence of the violation, the
4-15 amount of the penalty, or both the occurrence of the violation and
4-16 the amount of the penalty.
4-17 (c) Within the 30-day period, a person who acts under
4-18 Subsection (b)(3) may:
4-19 (1) stay enforcement of the penalty by:
4-20 (A) paying the penalty to the court for
4-21 placement in an escrow account; or
4-22 (B) giving to the court a supersedeas bond that
4-23 is approved by the court for the amount of the penalty and that is
4-24 effective until all judicial review of the order is final; or
4-25 (2) request the court to stay enforcement of the
4-26 penalty by:
4-27 (A) filing with the court a sworn affidavit of
5-1 the person stating that the person is financially unable to pay the
5-2 amount of the penalty and is financially unable to give the
5-3 supersedeas bond; and
5-4 (B) giving a copy of the affidavit to the
5-5 department by certified mail.
5-6 (d) If the department receives a copy of an affidavit under
5-7 Subsection (c)(2), the department may file with the court, within
5-8 five days after the date the copy is received, a contest to the
5-9 affidavit. The court shall hold a hearing on the facts alleged in
5-10 the affidavit as soon as practicable and shall stay the enforcement
5-11 of the penalty on finding that the alleged facts are true. The
5-12 person who files an affidavit has the burden of proving that the
5-13 person is financially unable to pay the penalty and to give a
5-14 supersedeas bond.
5-15 (e) If the person does not pay the penalty and the
5-16 enforcement of the penalty is not stayed, the department may refer
5-17 the matter to the attorney general for collection of the penalty.
5-18 (f) Judicial review of the order:
5-19 (1) is instituted by filing a petition as provided by
5-20 Subchapter G, Chapter 2001, Government Code; and
5-21 (2) is under the substantial evidence rule.
5-22 (g) If the court sustains the occurrence of the violation,
5-23 the court may uphold or reduce the amount of the penalty and order
5-24 the person to pay the full or reduced amount of the penalty. If
5-25 the court does not sustain the occurrence of the violation, the
5-26 court shall order that a penalty is not owed.
5-27 (h) When the judgment of the court becomes final, the court
6-1 shall proceed under this subsection. If the person paid the amount
6-2 of the penalty under Subsection (b)(2) and if that amount is
6-3 reduced or is not upheld by the court, the court shall order that
6-4 the department pay the appropriate amount plus accrued interest to
6-5 the person. The rate of the interest is the rate charged on loans
6-6 to depository institutions by the New York Federal Reserve Bank,
6-7 and the interest shall be paid for the period beginning on the date
6-8 the penalty was paid and ending on the date the penalty is
6-9 remitted. If the person paid the penalty under Subsection
6-10 (c)(1)(A) or gave a supersedeas bond and if the amount of the
6-11 penalty is not upheld by the court, the court shall order the
6-12 release of the escrow account or bond. If the person paid the
6-13 penalty under Subsection (c)(1)(A) and the amount of the penalty is
6-14 reduced, the court shall order that the amount of the penalty be
6-15 paid to the department from the escrow account and that the
6-16 remainder of the account be released. If the person gave a
6-17 supersedeas bond and if the amount of the penalty is reduced, the
6-18 court shall order the release of the bond after the person pays the
6-19 amount.
6-20 Sec. 248.060. PENALTY DEPOSITED TO STATE TREASURY. An
6-21 administrative penalty collected under this chapter shall be
6-22 deposited in the state treasury to the credit of the general
6-23 revenue fund.
6-24 Sec. 248.061. RECOVERY OF COSTS. (a) The department may
6-25 assess reasonable expenses and costs against a person in an
6-26 administrative hearing if, as a result of the hearing, the person's
6-27 license is denied, suspended, or revoked or if administrative
7-1 penalties are assessed against the person. The person shall pay
7-2 expenses and costs assessed under this subsection not later than
7-3 the 30th day after the date on which the order issued by the
7-4 commissioner of public health or the commissioner's designee
7-5 requiring the payment of expenses and costs is final. The
7-6 department may refer the matter to the attorney general for
7-7 collection of the expenses and costs.
7-8 (b) If the attorney general brings an action against a
7-9 person under Section 248.053 or 248.054 or to enforce an
7-10 administrative penalty assessed under this subchapter, and an
7-11 injunction is granted against the person or the person is found
7-12 liable for a civil or administrative penalty, the attorney general
7-13 may recover, on behalf of the attorney general and the department,
7-14 reasonable costs and expenses.
7-15 (c) For purposes of this section, "reasonable costs and
7-16 expenses" include expenses incurred by the department and the
7-17 attorney general in the investigation, initiation, or prosecution
7-18 of an action, including reasonable investigative costs, court
7-19 costs, attorney's fees, witness fees, and deposition expenses.
7-20 (d) Costs and expenses collected under this section shall be
7-21 deposited in the state treasury to the credit of a special account
7-22 that may be appropriated only to the department.
7-23 SECTION 3. This Act takes effect September 1, 1997.
7-24 SECTION 4. (a) The Texas Board of Health shall adopt rules
7-25 to implement the change in law made by Section 1 of this Act not
7-26 later than December 31, 1997.
7-27 (b) The change in law made by Section 2 of this Act applies
8-1 only to:
8-2 (1) the imposition of an administrative penalty for
8-3 conduct that occurs on or after September 1, 1997; and
8-4 (2) the award of reasonable costs and expenses under
8-5 Section 248.061(b), Health and Safety Code, as added by this Act,
8-6 with respect to:
8-7 (A) a civil penalty or administrative penalty
8-8 imposed for conduct that occurs on or after September 1, 1997; or
8-9 (B) an action for an injunction brought on or
8-10 after September 1, 1997.
8-11 SECTION 5. The importance of this legislation and the
8-12 crowded condition of the calendars in both houses create an
8-13 emergency and an imperative public necessity that the
8-14 constitutional rule requiring bills to be read on three several
8-15 days in each house be suspended, and this rule is hereby suspended.