1-1           By:  Harris, et al                               S.B. No. 407

 1-2           (In the Senate - Filed January 31, 1997; February 5, 1997,

 1-3     read first time and referred to Committee on Health and Human

 1-4     Services; February 17, 1997, reported favorably by the following

 1-5     vote:  Yeas 11, Nays 0; February 17, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to minimum standards, records, suspension or revocation of

 1-9     a license, and administrative penalties for abortion facilities.

1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-11           SECTION 1.  Subsection (c), Section 245.010, Health and

1-12     Safety Code, is amended to read as follows:

1-13           (c)  The standards may not be more stringent than Medicare

1-14     certification standards, if any, for:

1-15                 (1)  qualifications for professional and

1-16     nonprofessional personnel;

1-17                 (2)  supervision of professional and nonprofessional

1-18     personnel;

1-19                 (3)  medical treatment and medical services provided by

1-20     an abortion facility and the coordination of treatment and

1-21     services, including quality assurance;

1-22                 (4)  sanitary and hygienic conditions within an

1-23     abortion facility;

1-24                 (5)  the equipment essential to the health and welfare

1-25     of the patients; [and]

1-26                 (6)  clinical records kept by an abortion facility; and

1-27                 (7)  management, ownership, and control of the

1-28     facility.

1-29           SECTION 2.  Subsection (d), Section 245.011, Health and

1-30     Safety Code, is amended to read as follows:

1-31           (d)  All information and records held by the department under

1-32     this chapter are confidential and are not open records for the

1-33     purposes of Chapter 552, Government Code.  That information may not

1-34     be released or made public on subpoena or otherwise, except that

1-35     release may be made:

1-36                 (1)  for statistical purposes, but only if a person,

1-37     patient, or abortion facility is not identified;

1-38                 (2)  with the consent of each person, patient, and

1-39     abortion facility identified in the information released; [or]

1-40                 (3)  to medical personnel, appropriate state agencies,

1-41     or county and district courts to enforce this chapter; or

1-42                 (4)  to appropriate state licensing boards to enforce

1-43     state licensing laws.

1-44           SECTION 3.  Section 245.012, Health and Safety Code, is

1-45     amended by adding Subsection (c) to read as follows:

1-46           (c)  The department may immediately suspend or revoke a

1-47     license when the health and safety of persons are threatened.  If

1-48     the department issues an order of immediate suspension or

1-49     revocation, the department shall immediately give the chief

1-50     executive officer of the abortion facility adequate notice of the

1-51     action and the procedure governing appeal of the action.  A person

1-52     whose license is suspended or revoked under this subsection is

1-53     entitled to a hearing not later than the 14th day after the

1-54     effective date of the suspension or revocation.

1-55           SECTION 4.  Chapter 245, Health and Safety Code, is amended

1-56     by adding Sections 245.017 through 245.022 to read as follows:

1-57           Sec. 245.017.  ADMINISTRATIVE PENALTY.  (a)  The department

1-58     may assess an administrative penalty against a person who violates

1-59     this chapter or a rule adopted under this chapter.

1-60           (b)  The penalty may not exceed $1,000 for each violation.

1-61     Each day of a continuing violation constitutes a separate

1-62     violation.

1-63           (c)  In determining the amount of an administrative penalty

1-64     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. 245.018.  REPORT RECOMMENDING ADMINISTRATIVE PENALTY.

2-10     (a)  If, after investigation of a possible violation and the facts

2-11     surrounding that possible violation, the department determines that

2-12     a violation has occurred, the department shall give written notice

2-13     of the violation to the person alleged to have committed the

2-14     violation.  The notice shall 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 listed in Section 245.017(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 the notice is

2-22     received, the person notified may accept the determination of the

2-23     department made under this section, including the recommended

2-24     penalty, or make a written request for a hearing on that

2-25     determination.

2-26           (c)  If the person notified of the violation accepts the

2-27     determination of the department, the commissioner of public health

2-28     or the commissioner's designee shall issue an order approving the

2-29     determination and ordering the person to pay the recommended

2-30     penalty.

2-31           Sec. 245.019.  HEARING; ORDER.  (a)  If the person requests a

2-32     hearing, the commissioner of public health or the commissioner's

2-33     designee shall:

2-34                 (1)  set a hearing;

2-35                 (2)  give written notice of the hearing to the person;

2-36     and

2-37                 (3)  designate a hearings examiner to conduct the

2-38     hearing.

2-39           (b)  The hearings examiner shall make findings of fact and

2-40     conclusions of law and shall promptly issue to the commissioner a

2-41     proposal for decision as to the occurrence of the violation and a

2-42     recommendation as to the amount of the proposed penalty, if a

2-43     penalty is determined to be warranted.

2-44           (c)  Based on the findings of fact and conclusions of law and

2-45     the recommendations of the hearings examiner, the commissioner by

2-46     order may find that a violation has occurred and may assess a

2-47     penalty or may find that no violation has occurred.

2-48           Sec. 245.020.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;

2-49     JUDICIAL REVIEW; REFUND.  (a)  The commissioner of public health or

2-50     the commissioner's designee shall give notice of the commissioner's

2-51     order under Section 245.019(c) to the person alleged to have

2-52     committed the violation.  The notice must include:

2-53                 (1)  separate statements of the findings of fact and

2-54     conclusions of law;

2-55                 (2)  the amount of any penalty assessed; and

2-56                 (3)  a statement of the right of the person to judicial

2-57     review of the commissioner's order.

2-58           (b)  Not later than the 30th day after the date the decision

2-59     is final as provided by Chapter 2001, Government Code, the person

2-60     shall:

2-61                 (1)  pay the penalty in full;

2-62                 (2)  pay the amount of the penalty and file a petition

2-63     for judicial review contesting the occurrence of the violation, the

2-64     amount of the penalty, or both the occurrence of the violation and

2-65     the amount of the penalty; or

2-66                 (3)  without paying the amount of the penalty, file a

2-67     petition for judicial review contesting the occurrence of the

2-68     violation, the amount of the penalty, or both the occurrence of the

2-69     violation and the amount of the penalty.

 3-1           (c)  Within the 30-day period, a person who acts under

 3-2     Subsection (b)(3) may:

 3-3                 (1)  stay enforcement of the penalty by:

 3-4                       (A)  paying the amount of the penalty to the

 3-5     court for placement in an escrow account; or

 3-6                       (B)  giving to the court a supersedeas bond that

 3-7     is approved by the court for the amount of the penalty and that is

 3-8     effective until all judicial review of the commissioner's order is

 3-9     final; or

3-10                 (2)  request the court to stay enforcement of the

3-11     penalty by:

3-12                       (A)  filing with the court a sworn affidavit of

3-13     the person stating that the person is financially unable to pay the

3-14     amount of the penalty and is financially unable to give the

3-15     supersedeas bond; and

3-16                       (B)  giving a copy of the affidavit to the

3-17     department by certified mail.

3-18           (d)  If the department receives a copy of an affidavit under

3-19     Subsection (c)(2), the department may file with the court, within

3-20     five days after the date the copy is received, a contest to the

3-21     affidavit.  The court shall hold a hearing on the facts alleged in

3-22     the affidavit as soon as practicable and shall stay the enforcement

3-23     of the penalty on finding that the alleged facts are true.  The

3-24     person who files an affidavit has the burden of proving that the

3-25     person is financially unable to pay the amount of the penalty and

3-26     to give a supersedeas bond.

3-27           (e)  If the person does not pay the amount of the penalty and

3-28     the enforcement of the penalty is not stayed, the department may

3-29     refer the matter to the attorney general for collection of the

3-30     amount of the penalty.

3-31           (f)  Judicial review of the order of the commissioner of

3-32     public health:

3-33                 (1)  is instituted by filing a petition as provided by

3-34     Subchapter G, Chapter 2001, Government Code; and

3-35                 (2)  is under the substantial evidence rule.

3-36           (g)  If the court sustains the occurrence of the violation,

3-37     the court may uphold or reduce the amount of the penalty and order

3-38     the person to pay the full or reduced amount of the penalty.  If

3-39     the court does not sustain the occurrence of the violation, the

3-40     court shall order that no penalty is owed.

3-41           (h)  When the judgment of the court becomes final, the court

3-42     shall proceed under this subsection.  If the person paid the amount

3-43     of the penalty and if that amount is reduced or is not upheld by

3-44     the court, the court shall order that the appropriate amount plus

3-45     accrued interest be remitted to the person. The rate of the

3-46     interest is the rate charged on loans to depository institutions by

3-47     the New York Federal Reserve Bank, and the interest shall be paid

3-48     for the period beginning on the date the penalty was paid and

3-49     ending on the date the penalty is remitted.  If the person gave a

3-50     supersedeas bond and if the amount of the penalty is not upheld by

3-51     the court, the court shall order the release of the bond.  If the

3-52     person gave a supersedeas bond and if the amount of the penalty is

3-53     reduced, the court shall order the release of the bond after the

3-54     person pays the amount.

3-55           Sec. 245.021.  PENALTY DEPOSITED TO STATE TREASURY.  A civil

3-56     or administrative penalty collected under this chapter shall be

3-57     deposited in the state treasury to the credit of the general

3-58     revenue fund.

3-59           Sec. 245.022.  RECOVERY OF COSTS.  (a)  The department may

3-60     assess reasonable expenses and costs against a person in an

3-61     administrative hearing if, as a result of the hearing, the person's

3-62     license is denied, suspended, or revoked or if administrative

3-63     penalties are assessed against the person.  The person shall pay

3-64     expenses and costs assessed under this subsection not later than

3-65     the 30th day after the date a board order requiring the payment of

3-66     expenses and costs is final.  The department may refer the matter

3-67     to the attorney general for collection of the expenses and costs.

3-68           (b)   If the attorney general brings an action against a

3-69     person under Section 245.013 or 245.015 or an action to enforce an

 4-1     administrative penalty assessed under Section 245.017 and an

 4-2     injunction is granted against the person or the person is found

 4-3     liable for a civil or administrative penalty, the attorney general

 4-4     may recover, on behalf of the attorney general and the department,

 4-5     reasonable expenses and costs.

 4-6           (c)  For purposes of this section, "reasonable expenses and

 4-7     costs" include expenses incurred by the department and the attorney

 4-8     general in the investigation, initiation, or prosecution of an

 4-9     action, including reasonable investigative costs, attorney's fees,

4-10     witness fees, and deposition expenses.

4-11           SECTION 5.  This Act takes effect September 1, 1997.

4-12           SECTION 6.  The importance of this legislation and the

4-13     crowded condition of the calendars in both houses create an

4-14     emergency and an imperative public necessity that the

4-15     constitutional rule requiring bills to be read on three several

4-16     days in each house be suspended, and this rule is hereby suspended.

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