SRC-AXB S.B. 196 76(R)BILL ANALYSIS


Senate Research CenterS.B. 196
By: Madla
Health Services
6/22/1999
Enrolled


DIGEST 

Currently, there is an established system for regulating intermediate care
facilities for the mentally retarded (ICF-MR) which addresses ICF-MR
regulation, governance, and use of administrative penalties.  However, the
specific provisions for penalties do not address many due process
provisions offered in parallel licensing statutes for similar programs.
This bill clarifies and creates provisions regarding violations and
penalties affecting ICF-MR facilities. 

PURPOSE

As enrolled, S.B. 196 sets forth provisions and administrative penalties
for intermediate care facilities for the mentally retarded. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Texas Department of Human Services
in SECTION 1 (Sections 252.033(h), and 252.065(c)-(e), Health and Safety
Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 252.033, Health and Safety Code, by adding
Subsection (h), to require the Texas Department of Human Services
(department), by rule, to define criteria for denial or revocation of
licenses. 

SECTION 2.  Amends Chapter 252B, Health and Safety Code, by adding Section
252.044, as follows: 

Sec.  252.044.  REPORTING VIOLATIONS.  Requires the department to perform
certain actions while conducting an inspection, survey, or investigation.
Requires the department to discuss violations with the facility's
management, and to provide a list of violations to certain entities.
Requires the department to conduct another discussion with the facility if
further violations are found.  Requires the facility to submit a violation
correction plan by the 10th day after receipt of the final statement of
violations. 

SECTION 3.  Amends Section 252.065, Health and Safety Code, to require the
penalty for a facility with fewer than 60 beds to be between $100 and $1,
000 for each violation, and the penalty for a facility with 60 or more beds
to not exceed $5,000 for each violation.  Provides further specifications
regarding the allowable assessed penalties.  Sets forth requirements
concerning the administrative penalty value and clarifies what is
considered a violation.  Authorizes the department, by rule, to specify
violations warranting an administrative penalty and sets forth a list of
items the department is required to consider. Authorizes the department, by
rule, to establish a specific and detailed schedule of penalties for
violations based on specifics of the violation.  Requires the department,
by rule, to provide the facility with at least 45 days to correct the
violation before assessing a penalty, if a plan of correction has been
implemented.  Provides that this subsection does not apply to a violation
that constitutes a serious threat to the health and safety of a resident.
Prohibits a penalty from being assessed for minor violations prior to 46
days after the violator receives notice of the violation.  Requires the
department to establish a system ensuring consistent application of
penalties.  Provides that all penalty proceedings under this chapter are
subject to Chapter 2001, Government Code.  Prohibits the department from
assessing a penalty against a state agency.  Provides that a penalty ceases
to accrue when the violation is corrected. Provides that the penalty ceases
to be incurred if the facility takes certain actions.  Sets forth
requirements for the rules adopted under this subsection.  Deletes the
department's rulemaking authority to establish gradations and amounts of
penalties.  Deletes certain departmental considerations in  determining the
amount of a penalty.  Deletes text prohibiting the department from
assessing certain penalties.  Makes conforming and nonsubstantive changes. 

SECTION 4.  Amends Chapter 252C, Health and Safety Code, by adding Section
252.0651, as follows: 

Sec.  252.0651.  APPLICATION OF OTHER LAW.  Limits the authority of the
department to assess multiple penalties for violations arising out of the
same failure to act. 

SECTION 5.  Amends Section 252.066, Health and Safety Code, as follows:

Sec.  252.066.  New heading:  NOTICE; REQUEST FOR HEARING.  Requires the
department to give written notice to a certain person, and sets forth the
required information to be included in the notice.  Authorizes the person
notified to accept the department's determination, or to make a written
request for a hearing, not later than the 20th day after violation
notification is received.  Authorizes the commissioner of human services or
a designee to order the person to pay the proposed penalty, if the person
notified under this section accepts the determination or fails to respond
to the notification.  Deletes Texas Board of Human Services rulemaking
authority concerning the assessment of administrative penalties.  Deletes
text requiring certain criteria for rules in this section, including the
requirement that a penalty be appropriate to the violation.  Deletes text
authorizing the department to assess a per diem penalty.  Deletes text
defining "immediate and serious threat." 

SECTION 6.  Amends Chapter 252C, Health and Safety Code, by adding Sections
252.067 through 252.071, as follows: 

Sec. 252.067.  HEARING; ORDER.  Sets forth requirements for the department
if the person notified  requests a hearing.  Sets forth required actions of
the hearings examiner.  Authorizes the commissioner of human services or a
designee to find that a violation has occurred and to assess a penalty or
to find that no violation has occurred, based on the results of the
hearing. 

Sec. 252.068.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
REVIEW; REFUND.  Requires the department to notify the alleged violator and
the person designated by the facility to receive notice under Section
252.066, and sets forth the required information to be included in the
notification.  Sets forth actions required of the alleged violator.
Authorizes the alleged violator to take certain actions within the 30-day
period after the final decision concerning the alleged violation.
Authorizes the department to contest a sworn affidavit stating that the
alleged violator is unable to pay the penalty, under certain conditions.
Sets forth procedures regarding the contested affidavit.  Authorizes the
department to refer the matter of an alleged violator who does not pay the
penalty to the attorney general.  Sets forth provisions regarding the
judicial review of the order.  Authorizes the court sustaining the
violation to reduce the amount of the penalty and order the violator to
pay.  Authorizes the court to order that no penalty is owed if it does not
sustain the violation.  Sets forth court procedures following a final
judgment.  

Sec. 252.069.  PENALTY DEPOSITED TO STATE TREASURY.  Requires a collected
administrative penalty to be credited to the general revenue fund. 

Sec. 252.070.  EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR ADMINISTRATIVE
PENALTY.  Authorizes the attorney general to recover reasonable costs and
expenses from a person found liable for a civil or administrative penalty.
Describes reasonable expenses and costs. 

 Sec.  252.071.  AMELIORATION OF VIOLATION.  Authorizes the department to
require a person subject to a penalty to use the penalty  funds to improve
the facility affected by the violation, in lieu of ordering the penalty's
payment. 

SECTION 7.Effective date:  September 1, 1999.
  Makes application of this Act prospective.

SECTION 8.Emergency clause.