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.
4-17 * * * * *