By: Harris S.B. No. 407
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A BILL TO BE ENTITLED
AN ACT
1-1 relating to minimum standards, records, suspension or revocation of
1-2 a license, and administrative penalties for abortion facilities.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (c), Section 245.010, Health and
1-5 Safety Code, is amended to read as follows:
1-6 (c) The standards may not be more stringent than Medicare
1-7 certification standards, if any, for:
1-8 (1) qualifications for professional and
1-9 nonprofessional personnel;
1-10 (2) supervision of professional and nonprofessional
1-11 personnel;
1-12 (3) medical treatment and medical services provided by
1-13 an abortion facility and the coordination of treatment and
1-14 services, including quality assurance;
1-15 (4) sanitary and hygienic conditions within an
1-16 abortion facility;
1-17 (5) the equipment essential to the health and welfare
1-18 of the patients; [and]
1-19 (6) clinical records kept by an abortion facility; and
1-20 (7) management, ownership, and control of the
1-21 facility.
1-22 SECTION 2. Subsection (d), Section 245.011, Health and
1-23 Safety Code, is amended to read as follows:
2-1 (d) All information and records held by the department under
2-2 this chapter are confidential and are not open records for the
2-3 purposes of Chapter 552, Government Code. That information may not
2-4 be released or made public on subpoena or otherwise, except that
2-5 release may be made:
2-6 (1) for statistical purposes, but only if a person,
2-7 patient, or abortion facility is not identified;
2-8 (2) with the consent of each person, patient, and
2-9 abortion facility identified in the information released; [or]
2-10 (3) to medical personnel, appropriate state agencies,
2-11 or county and district courts to enforce this chapter; or
2-12 (4) to appropriate state licensing boards to enforce
2-13 state licensing laws.
2-14 SECTION 3. Subsection (c), Section 245.012, Health and
2-15 Safety Code, is amended to read as follows:
2-16 (c) The department may immediately suspend or revoke a
2-17 license when the health and safety of persons are threatened. If
2-18 the department issues an order of immediate suspension or
2-19 revocation, the department shall immediately give the chief
2-20 executive officer of the abortion facility adequate notice of the
2-21 action and the procedure governing appeal of the action. A person
2-22 whose license is suspended or revoked under this subsection is
2-23 entitled to a hearing not later than the 14th day after the
2-24 effective date of the suspension or revocation.
2-25 SECTION 4. Chapter 245, Health and Safety Code, is amended
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3-1 by adding Sections 245.017 through 245.022 to read as follows:
3-2 Sec. 245.017. ADMINISTRATIVE PENALTY. (a) The department
3-3 may assess an administrative penalty against a person who violates
3-4 this chapter or a rule adopted under this chapter.
3-5 (b) The penalty may not exceed $1,000 for each violation.
3-6 Each day of a continuing violation constitutes a separate
3-7 violation.
3-8 (c) In determining the amount of an administrative penalty
3-9 assessed under this section, the department shall consider:
3-10 (1) the seriousness of the violation;
3-11 (2) the history of previous violations;
3-12 (3) the amount necessary to deter future violations;
3-13 (4) efforts made to correct the violation; and
3-14 (5) any other matters that justice may require.
3-15 (d) All proceedings for the assessment of an administrative
3-16 penalty under this chapter are subject to Chapter 2001, Government
3-17 Code.
3-18 Sec. 245.018. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
3-19 (a) If, after investigation of a possible violation and the facts
3-20 surrounding that possible violation, the department determines that
3-21 a violation has occurred, the department shall give written notice
3-22 of the violation to the person alleged to have committed the
3-23 violation. The notice shall include:
3-24 (1) a brief summary of the alleged violation;
3-25 (2) a statement of the amount of the proposed penalty,
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4-1 based on the factors listed in Section 245.017(c); and
4-2 (3) a statement of the person's right to a hearing on
4-3 the occurrence of the violation, the amount of the penalty, or both
4-4 the occurrence of the violation and the amount of the penalty.
4-5 (b) Not later than the 20th day after the date the notice is
4-6 received, the person notified may accept the determination of the
4-7 department made under this section, including the recommended
4-8 penalty, or make a written request for a hearing on that
4-9 determination.
4-10 (c) If the person notified of the violation accepts the
4-11 determination of the department, the commissioner of public health
4-12 or the commissioner's designee shall issue an order approving the
4-13 determination and ordering the person to pay the recommended
4-14 penalty.
4-15 Sec. 245.019. HEARING; ORDER. (a) If the person requests a
4-16 hearing, the commissioner of public health or the commissioner's
4-17 designee shall:
4-18 (1) set a hearing;
4-19 (2) give written notice of the hearing to the person;
4-20 and
4-21 (3) designate a hearings examiner to conduct the
4-22 hearing.
4-23 (b) The hearings examiner shall make findings of fact and
4-24 conclusions of law and shall promptly issue to the commissioner a
4-25 proposal for decision as to the occurrence of the violation and a
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5-1 recommendation as to the amount of the proposed penalty, if a
5-2 penalty is determined to be warranted.
5-3 (c) Based on the findings of fact and conclusions of law and
5-4 the recommendations of the hearings examiner, the commissioner by
5-5 order may find that a violation has occurred and may assess a
5-6 penalty or may find that no violation has occurred.
5-7 Sec. 245.020. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
5-8 JUDICIAL REVIEW; REFUND. (a) The commissioner of public health or
5-9 the commissioner's designee shall give notice of the commissioner's
5-10 order under Section 245.019(c) to the person alleged to have
5-11 committed the violation. The notice must include:
5-12 (1) separate statements of the findings of fact and
5-13 conclusions of law;
5-14 (2) the amount of any penalty assessed; and
5-15 (3) a statement of the right of the person to judicial
5-16 review of the commissioner's order.
5-17 (b) Not later than the 30th day after the date the decision
5-18 is final as provided by Chapter 2001, Government Code, the person
5-19 shall:
5-20 (1) pay the penalty in full;
5-21 (2) pay the amount of the penalty and file a petition
5-22 for judicial review contesting the occurrence of the violation, the
5-23 amount of the penalty, or both the occurrence of the violation and
5-24 the amount of the penalty; or
5-25 (3) without paying the amount of the penalty, file a
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6-1 petition for judicial review contesting the occurrence of the
6-2 violation, the amount of the penalty, or both the occurrence of the
6-3 violation and the amount of the penalty.
6-4 (c) Within the 30-day period, a person who acts under
6-5 Subsection (b)(3) may:
6-6 (1) stay enforcement of the penalty by:
6-7 (A) paying the amount of the penalty to the
6-8 court for placement in an escrow account; or
6-9 (B) giving to the court a supersedeas bond that
6-10 is approved by the court for the amount of the penalty and that is
6-11 effective until all judicial review of the commissioner's order is
6-12 final; or
6-13 (2) request the court to stay enforcement of the
6-14 penalty by:
6-15 (A) filing with the court a sworn affidavit of
6-16 the person stating that the person is financially unable to pay the
6-17 amount of the penalty and is financially unable to give the
6-18 supersedeas bond; and
6-19 (B) giving a copy of the affidavit to the
6-20 department by certified mail.
6-21 (d) If the department receives a copy of an affidavit under
6-22 Subsection (c)(2), the department may file with the court, within
6-23 five days after the date the copy is received, a contest to the
6-24 affidavit. The court shall hold a hearing on the facts alleged in
6-25 the affidavit as soon as practicable and shall stay the enforcement
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7-1 of the penalty on finding that the alleged facts are true. The
7-2 person who files an affidavit has the burden of proving that the
7-3 person is financially unable to pay the amount of the penalty and
7-4 to give a supersedeas bond.
7-5 (e) If the person does not pay the amount of the penalty and
7-6 the enforcement of the penalty is not stayed, the department may
7-7 refer the matter to the attorney general for collection of the
7-8 amount of the penalty.
7-9 (f) Judicial review of the order of the commissioner of
7-10 public health:
7-11 (1) is instituted by filing a petition as provided by
7-12 Subchapter G, Chapter 2001, Government Code; and
7-13 (2) is under the substantial evidence rule.
7-14 (g) If the court sustains the occurrence of the violation,
7-15 the court may uphold or reduce the amount of the penalty and order
7-16 the person to pay the full or reduced amount of the penalty. If
7-17 the court does not sustain the occurrence of the violation, the
7-18 court shall order that no penalty is owed.
7-19 (h) When the judgment of the court becomes final, the court
7-20 shall proceed under this subsection. If the person paid the amount
7-21 of the penalty and if that amount is reduced or is not upheld by
7-22 the court, the court shall order that the appropriate amount plus
7-23 accrued interest be remitted to the person. The rate of the
7-24 interest is the rate charged on loans to depository institutions by
7-25 the New York Federal Reserve Bank, and the interest shall be paid
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8-1 for the period beginning on the date the penalty was paid and
8-2 ending on the date the penalty is remitted. If the person gave a
8-3 supersedeas bond and if the amount of the penalty is not upheld by
8-4 the court, the court shall order the release of the bond. If the
8-5 person gave a supersedeas bond and if the amount of the penalty is
8-6 reduced, the court shall order the release of the bond after the
8-7 person pays the amount.
8-8 Sec. 245.021. PENALTY DEPOSITED TO STATE TREASURY. A civil
8-9 or administrative penalty collected under this chapter shall be
8-10 deposited in the state treasury to the credit of the general
8-11 revenue fund.
8-12 Sec. 245.022. RECOVERY OF COSTS. (a) The department may
8-13 assess reasonable expenses and costs against a person in an
8-14 administrative hearing if, as a result of the hearing, the person's
8-15 license is denied, suspended, or revoked or if administrative
8-16 penalties are assessed against the person. The person shall pay
8-17 expenses and costs assessed under this subsection not later than
8-18 the 30th day after the date a board order requiring the payment of
8-19 expenses and costs is final. The department may refer the matter
8-20 to the attorney general for collection of the expenses and costs.
8-21 (b) If the attorney general brings an action against a
8-22 person under Section 245.013 or 245.015 or an action to enforce an
8-23 administrative penalty assessed under Section 245.017 and an
8-24 injunction is granted against the person or the person is found
8-25 liable for a civil or administrative penalty, the attorney general
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9-1 may recover, on behalf of the attorney general and the department,
9-2 reasonable expenses and costs.
9-3 (c) For purposes of this section, "reasonable expenses and
9-4 costs" include expenses incurred by the department and the attorney
9-5 general in the investigation, initiation, or prosecution of an
9-6 action, including reasonable investigative costs, attorney's fees,
9-7 witness fees, and deposition expenses.
9-8 SECTION 5. This Act takes effect September 1, 1997.
9-9 SECTION 6. The importance of this legislation and the
9-10 crowded condition of the calendars in both houses create an
9-11 emergency and an imperative public necessity that the
9-12 constitutional rule requiring bills to be read on three several
9-13 days in each house be suspended, and this rule is hereby suspended.
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