HBA-MPM S.B. 1232 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1232 By: Nelson Public Health 5/2/1999 Engrossed BACKGROUND AND PURPOSE Currently, the Texas Department of Health (TDH) regulates birthing centers, but does not have the authority to issue emergency suspensions, revoke a license, use administrative penalties as an enforcement tool, or place a monitor at the center's expense when compliance issues warrant such a move. Lack of authority may prohibit TDH from intervening to protect the health and well being of patients. S.B. 1232 amends the Texas Birthing Center Act to expand the enforcement tools available to TDH in the course of regulating birthing centers. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 244.006, Health and Safety Code, to authorize the Texas Department of Health (TDH) to appoint a monitor for a birthing center to ensure compliance with this chapter, if the center's failure to comply creates a serious threat to the health and safety of the public. SECTION 2. Amends Section 244.011(a), Health and Safety Code, to authorize TDH to deny, suspend, or revoke a license for a history of continuing noncompliance with this chapter or rules adopted under it. SECTION 3. Amends Chapter 244, Health and Safety Code, by adding Sections 244.0105, 244.0115 and 244.015-244.020, as follows: Sec. 244.0105. COMPLAINTS. Authorizes a person to file a complaint with TDH against a birthing center licensed under this chapter. Provides that a person filing a false complaint may be prosecuted under the Penal Code. Sec. 244.0115. EMERGENCY SUSPENSION. Authorizes TDH to issue an emergency order to suspend a license issued under this chapter if it has reasonable cause to believe that a license holder's conduct creates an immediate danger to the public health and safety. Requires TDH, on written request of the license holder, to conduct a hearing no earlier than the seventh day or later than the 10th day after notice of the emergency suspension is sent to the license holder to determine if the suspension is to take effect, to be modified, or to be rescinded. Provides that the hearing and any appeal are governed by TDH's rules for a contested case hearing and Chapter 2001 (Administrative Procedure), Government Code. Sec. 244.015. ADMINISTRATIVE PENALTY. Authorizes TDH to assess an administrative penalty, not to exceed $1,000 per violation, against a person who violates this chapter or a rule adopted under it. Requires TDH to consider certain factors with respect to the violation when determining the penalty amount. Provides that all proceedings for the assessment of a penalty are considered contested cases under Chapter 2001, Government Code. Sec. 244.016. NOTICE; REQUEST FOR HEARING. (a) Requires TDH to give written notice of a violation to a person alleged to have committed the violation if, after an investigation, TDH determines a violation has occurred. Requires the notice to include certain information with respect to the violation. (b) Authorizes a person notified to accept TDH's determination made under this section including the proposed penalty, or to make a written request for a hearing no later than the 20th day after receiving the notice. (c) Requires the commissioner of health (commissioner) or commissioner's designee to issue an order approving the determination and ordering the person to pay the proposed penalty if the person notified of the violation accepts TDH's determination. Sec. 244.017. HEARING; ORDER. (a) Requires the department to follow certain procedures with respect to setting a hearing if the person notified fails to response in a timely manner to the notice under Section 244.016, Health and Safety Code. (b) Requires the hearings examiner to make findings of fact and conclusions of law and to promptly issue to the commissioner or commissioner's designee a proposal for decision as to the occurrence of the violation and a recommendation as to the amount of the proposed penalty if one is determined to be warranted. (c) Authorizes the commissioner or commissioner's designee, based on findings of fact and conclusions of law, by order, to find that a violation has occurred and to assess a penalty or to find that no violation has occurred. Sec. 244.018. HEARING AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. (a) Requires TDH to give notice of the order under Section 244.017(c), Health and Safety Code, to the person notified. Provides that the notice must include specific information with respect to the order. (b) Requires the person, no later than the 30th day after the decision is final as provided by Chapter 2001, Government Code, to: _pay the penalty; _pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the penalty amount, or both; or _file a petition for judicial review contesting the occurrence of the violation, the penalty amount, or both, without paying the penalty. (c) Authorizes a person acting under Subsection (b), within a 30-day period, to: _stay enforcement of the penalty by paying it to the court for placement in escrow or giving the court a supersedeas bond for the penalty amount which is effective until the order is final; or _request the court to stay enforcement of the penalty by filing a sworn affidavit of the person stating the person's financial inability to pay the penalty amount or to give the supersedeas bond and giving a copy of the affidavit to TDH by certified mail. (d) Authorizes TDH, if it receives a copy of an affidavit under Subsection (c), to file with the court, within five days after receipt of the copy, a contest to the affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable and to stay the enforcement of the penalty on finding that the alleged facts are true. Provides that the person filing the affidavit has the burden of proof that the person is financially unable to pay the penalty and to give a supersedeas bond. (e) Authorizes TDH to refer the matter to the attorney general for collection of a penalty if the person does not pay the penalty and the enforcement of it is not stayed. (f) Provides that judicial review of the order is instituted by filing a petition as provided by Subchapter G (Contested Cases: Judicial Review), Chapter 2001, Government Code, and is under the substantial evidence rule. (g) Authorizes the court to uphold or reduce the penalty amount and order the person to pay the full or reduced penalty amount if the court sustains the occurrence of the violation. Requires the court to order that no penalty is owed if it does not sustain the occurrence of the violation. (h) Requires the court upon final judgment to proceed under this subsection. Requires the court to order that TDH pay the appropriate penalty amount plus accrued interest to a person if the person paid a penalty amount under Subsection (b) and that amount is reduced or not upheld by the court. Provides that the interest rate is that charged on loans to depository institutions by the New York Federal Reserve Bank. Requires the interest to be paid for the period beginning on the date the penalty was paid and ending the date the penalty is remitted. Requires the court to order the release of an escrow account or bond, if the person paid the penalty under Subsection (c) or gave a supersedeas bond and if the penalty amount is not upheld by the court. Requires the court to order that the penalty amount be paid to TDH from the escrow account and that the remainder of the account be released if the person paid the penalty under Subsection (c) and the penalty amount is reduced. Requires the court to order the release of the bond after a person pays a penalty amount, if the person gave a supersedeas bond and the penalty amount is reduced. Sec. 244.019. PENALTY DEPOSITED TO STATE TREASURY. Requires a civil or administrative penalty collected under this chapter to be deposited in the state treasury to the credit of the general revenue fund. Sec. 244.020. RECOVERY OF COSTS. (a) Authorizes TDH to assess reasonable expenses and costs against a person in an administrative hearing if it results in the person's licensing being denied, suspended, or revoked, or if administrative penalties are assessed against the person. Requires the person to pay expenses and costs assessed under this subsection no later than the 30th day after the order of the commissioner or the commissioner's designee requiring the payment of expenses and costs is final. Authorizes TDH to refer the matter to the attorney general for collection. (b) Authorizes the attorney general to recover on behalf of the attorney general and TDH reasonable expenses and costs if the attorney general brings an action against a person under Section 244.012 or 244.014 or to enforce an administrative penalty assessed under Section 244.015, and an injunction is granted against the person or the person is found liable for the penalty. (c) Defines "reasonable expenses" for purposes of this section. (d) Requires costs and expenses collected under this section to be deposited in the general revenue fund to the credit of the birthing center penalty account. Authorizes money in the account to be appropriated only to TDH to administer this chapter. Makes Section 403.095 (Use of Dedicated Revenue), Government Code, inapplicable to the account. SECTION 4. Effective date: September 1, 1999. SECTION 5. Emergency clause.