By: Moncrief S.B. No. 90
97S0013/1 09/13/96
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the imposition of administrative penalties for certain
1-3 violations by personal care facilities regulated by the Texas
1-4 Department of Human Services.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 247.002, Health and Safety Code, is
1-7 amended to read as follows:
1-8 Sec. 247.002. Definitions. In this chapter:
1-9 (1) "Board" means the Texas Board of Human Services.
1-10 (2) "Commissioner" means the Commissioner of Human
1-11 Services.
1-12 (3) "Department" means the Texas Department of Human
1-13 Services.
1-14 (4)[(3)] "Personal care facility" means an
1-15 establishment, including a board and care home, that:
1-16 (A) furnishes, in one or more facilities, food
1-17 and shelter to four or more persons who are unrelated to the
1-18 proprietor of the establishment; and
1-19 (B) provides personal care services.
1-20 (5)[(4)] "Personal care services" means:
1-21 (A) assistance with meals, dressing, movement,
1-22 bathing, or other personal needs or maintenance;
1-23 (B) the administration of medication by a person
1-24 licensed to administer medication or the assistance with or
2-1 supervision of medication; or
2-2 (C) general supervision or oversight of the
2-3 physical and mental well-being of a person who needs assistance to
2-4 maintain a private and independent residence in a personal care
2-5 facility or who needs assistance to manage the person's personal
2-6 life, regardless of whether a guardian has been appointed for the
2-7 person.
2-8 (6)[(5)] "Qualified religious society" means a church,
2-9 synagogue, or other organization or association that is organized
2-10 primarily for religious purposes and that:
2-11 (A) has been in existence in this state for at
2-12 least 35 years; and
2-13 (B) does not distribute any of its income to its
2-14 members, officers, or governing body other than as reasonable
2-15 compensation for services or reimbursement of expenses.
2-16 SECTION 2. Subchapter C, Chapter 247, Health and Safety
2-17 Code, is amended by adding Sections 247.0451, 247.0452, 247.0453,
2-18 and 247.0454 to read as follows:
2-19 Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) The department
2-20 may assess an administrative penalty against a person who violates
2-21 this chapter or a rule or order adopted or license issued under
2-22 this chapter.
2-23 (b) The penalty may not exceed $10,000 a day for each
2-24 violation.
2-25 (c) Each day of a continuing violation constitutes a
3-1 separate violation.
3-2 (d) The board shall establish gradations of penalties in
3-3 accordance with the relative seriousness of the violation.
3-4 (e) In determining the amount of an administrative penalty
3-5 assessed under this section, the department shall consider any
3-6 matter that justice may require, including:
3-7 (1) the gradations of penalties established under
3-8 Subsection (d);
3-9 (2) the seriousness of the violation, including the
3-10 nature, circumstances, extent, and gravity of the prohibited act
3-11 and the hazard or potential hazard to the health or safety of the
3-12 public created by the act;
3-13 (3) the history of previous violations;
3-14 (4) deterrence of future violations; and
3-15 (5) efforts to correct the violation.
3-16 Sec. 247.0452. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
3-17 (a) The department may issue a preliminary report stating the
3-18 facts on which it concludes that a violation of this chapter or of
3-19 a rule or order adopted or license issued under this chapter has
3-20 occurred if it has:
3-21 (1) examined the possible violation and facts
3-22 surrounding the possible violation; and
3-23 (2) concluded that a violation has occurred.
3-24 (b) The report may recommend a penalty under Section
3-25 247.0451 and the amount of the penalty.
4-1 (c) The department shall give written notice of the report
4-2 to the person charged with the violation not later than the 10th
4-3 day after the date on which the report is issued. The notice must
4-4 include:
4-5 (1) a brief summary of the charges;
4-6 (2) a statement of the amount of penalty recommended;
4-7 and
4-8 (3) a statement that the person charged has a right to
4-9 a hearing on the occurrence of the violation, the amount of the
4-10 penalty, or both.
4-11 (d) Not later than the 20th day after the date on which the
4-12 notice is sent, the person charged may:
4-13 (1) give to the department written consent to the
4-14 department's report, including the recommended penalty; or
4-15 (2) make a written request for a hearing.
4-16 (e) If the person charged with the violation consents to the
4-17 administrative penalty recommended by the department or does not
4-18 timely respond to the notice, the commissioner or the
4-19 commissioner's designee shall:
4-20 (1) assess the administrative penalty recommended by
4-21 the department; or
4-22 (2) order a hearing to be held on the findings and
4-23 recommendations in the department's report.
4-24 (f) If the commissioner or the commissioner's designee
4-25 assesses the recommended penalty, the department shall give written
5-1 notice to the person charged of the decision and the person shall
5-2 pay the penalty.
5-3 Sec. 247.0453. HEARING. (a) The commissioner shall set a
5-4 date for a hearing and give notice of the hearing if:
5-5 (1) a person charged requests a hearing; or
5-6 (2) the commissioner or the commissioner's designee
5-7 orders a hearing.
5-8 (b) The hearing shall be held by a hearing examiner
5-9 designated by the commissioner.
5-10 (c) The hearing examiner shall make findings of fact and
5-11 promptly issue to the commissioner a written decision regarding the
5-12 occurrence of a violation of this chapter or of a rule or order
5-13 adopted or license issued under this chapter and a recommendation
5-14 regarding the amount of the proposed penalty if a penalty is
5-15 warranted.
5-16 (d) Based on the findings of fact and recommendations of the
5-17 hearing examiner, the commissioner by order may:
5-18 (1) find that a violation has occurred and assess an
5-19 administrative penalty; or
5-20 (2) find that a violation has not occurred.
5-21 (e) Proceedings under this section are subject to Chapter
5-22 2001, Government Code.
5-23 Sec. 247.0454. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
5-24 REFUND. (a) The commissioner shall give notice of the decision
5-25 taken under Section 247.0453(d) to the person charged. If the
6-1 commissioner finds that a violation has occurred and assesses an
6-2 administrative penalty, the commissioner shall give written notice
6-3 to the person charged of the findings, the amount of the penalty,
6-4 and the person's right to judicial review of the order.
6-5 (b) Except as provided by Subsection (c), not later than the
6-6 30th day after the date on which the commissioner's order is final,
6-7 the person charged with the penalty shall pay the full amount of
6-8 the penalty.
6-9 (c) If the person seeks judicial review of the violation,
6-10 the amount of the penalty, or both, the person, within the time
6-11 provided by Subsection (b), shall:
6-12 (1) send the amount of the penalty to the commissioner
6-13 for placement in an escrow account; or
6-14 (2) post with the commissioner a supersedeas bond in a
6-15 form approved by the commissioner for the amount of the penalty,
6-16 the bond to be effective until the judicial review of the order or
6-17 decision is final.
6-18 (d) A person who fails to comply with Subsection (c) waives
6-19 the right to judicial review, and the commissioner may request
6-20 enforcement by the attorney general.
6-21 (e) If a penalty is reduced or not assessed, the
6-22 commissioner shall:
6-23 (1) remit to the person charged the appropriate amount
6-24 of any penalty payment plus accrued interest; or
6-25 (2) execute a release of the supersedeas bond if one
7-1 has been posted.
7-2 (f) Accrued interest on amounts remitted by the commissioner
7-3 under Subsection (e)(1) shall be paid:
7-4 (1) at a rate equal to the rate charged on loans to
7-5 depository institutions by the New York Federal Reserve Bank; and
7-6 (2) for the period beginning on the date the penalty
7-7 is paid to the commissioner under Subsection (c) and ending on the
7-8 date the penalty is remitted.
7-9 (g) A penalty collected under this section shall be
7-10 deposited in the state treasury to the credit of the general
7-11 revenue fund.
7-12 SECTION 3. This Act takes effect September 1, 1997.
7-13 SECTION 4. The importance of this legislation and the
7-14 crowded condition of the calendars in both houses create an
7-15 emergency and an imperative public necessity that the
7-16 constitutional rule requiring bills to be read on three several
7-17 days in each house be suspended, and this rule is hereby suspended.