AN ACT
1-1 relating to administrative penalties for intermediate care
1-2 facilities for the mentally retarded.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 252.033, Health and Safety Code, is
1-5 amended by adding Subsection (h) to read as follows:
1-6 (h) The department by rule shall define specific,
1-7 appropriate, and objective criteria on which it may deny an initial
1-8 license application or license renewal or revoke a license.
1-9 SECTION 2. Subchapter B, Chapter 252, Health and Safety
1-10 Code, is amended by adding Section 252.044 to read as follows:
1-11 Sec. 252.044. REPORTING VIOLATIONS. (a) The department or
1-12 the department's representative conducting an inspection, survey,
1-13 or investigation under this chapter shall:
1-14 (1) list each violation of a law or rule on a form
1-15 designed by the department for inspections; and
1-16 (2) identify the specific law or rule the facility
1-17 violates.
1-18 (b) At the conclusion of an inspection, survey, or
1-19 investigation under this chapter, the department or the
1-20 department's representative conducting the inspection, survey, or
1-21 investigation shall discuss the violations with the facility's
1-22 management in an exit conference. The department or the
1-23 department's representative shall leave a written list of the
1-24 violations with the facility and the person designated by the
2-1 facility to receive notice under Section 252.066 at the time of the
2-2 exit conference. If the department or the department's
2-3 representative discovers any additional violations during the
2-4 review of field notes or preparation of the official final list,
2-5 the department or the department's representative shall give the
2-6 facility an additional exit conference regarding the additional
2-7 violations.
2-8 (c) The facility shall submit a plan to correct the
2-9 violations to the regional director not later than the 10th day
2-10 after the date the facility receives the final statement of
2-11 violations.
2-12 SECTION 3. Section 252.065, Health and Safety Code, is
2-13 amended to read as follows:
2-14 Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The department
2-15 may assess an administrative penalty against a facility that
2-16 violates this chapter or a rule adopted under this chapter [as
2-17 specified by this section].
2-18 (b) The penalty for a facility with fewer than 60 beds shall
2-19 be not less than $100 or more than $1,000 for each violation. The
2-20 penalty for a facility with 60 beds or more shall be not less than
2-21 $100 or more than $5,000 for each violation. The total amount of
2-22 the penalty assessed for a violation continuing or occurring on
2-23 separate days under this subsection may not exceed $5,000 for a
2-24 facility with fewer than 60 beds or $25,000 for a facility with 60
2-25 beds or more. Each day a violation occurs or continues is a
2-26 separate violation for purposes of imposing a penalty. [The
3-1 department by rule shall establish gradations and amounts of
3-2 penalties.]
3-3 (c) The department by rule shall specify each violation for
3-4 which an administrative penalty may be assessed. In determining
3-5 which violations warrant penalties, the department shall consider:
3-6 (1) the seriousness of the violation, including the
3-7 nature, circumstances, extent, and gravity of the violation and the
3-8 hazard of the violation to the health or safety of clients; and
3-9 (2) whether the affected facility had identified the
3-10 violation as a part of its internal quality assurance process and
3-11 had made appropriate progress on correction. [In determining the
3-12 amount of a penalty, the department shall consider:]
3-13 [(1) the gradations of penalties established under
3-14 Subsection (b);]
3-15 [(2) the seriousness of the violation, including the
3-16 nature, circumstances, extent, and gravity of the violation;]
3-17 [(3) the hazard or potential hazard created by the
3-18 violation to the public health and safety;]
3-19 [(4) any previous violations;]
3-20 [(5) the amount necessary to deter future violations;]
3-21 [(6) efforts made to correct the violation;]
3-22 [(7) the size of the facility; and]
3-23 [(8) any other matter justice may require.]
3-24 (d) The department by rule shall establish a specific and
3-25 detailed schedule of appropriate and graduated penalties for each
3-26 violation based on:
4-1 (1) the seriousness of the violation, including the
4-2 nature, circumstances, extent, and gravity of the violation and the
4-3 hazard of the violation to the health or safety of clients;
4-4 (2) the history of previous violations;
4-5 (3) whether the affected facility had identified the
4-6 violation as a part of its internal quality assurance process and
4-7 had made appropriate progress on correction;
4-8 (4) the amount necessary to deter future violations;
4-9 (5) efforts made to correct the violation;
4-10 (6) the size of the facility; and
4-11 (7) any other matters that justice may require. [The
4-12 penalty may not exceed $5,000 for each violation. Each day of a
4-13 continuing violation constitutes a separate violation.]
4-14 (e) The department by rule shall provide the facility with a
4-15 reasonable period of time, not less than 45 days, following the
4-16 first day of a violation to correct the violation before assessing
4-17 an administrative penalty if a plan of correction has been
4-18 implemented. This subsection does not apply to a violation that
4-19 the department determines has resulted in serious harm to or the
4-20 death of a resident or constitutes a serious threat to the health
4-21 or safety of a resident [may not assess a penalty under both this
4-22 subchapter and Section 32.021, Human Resources Code, for a
4-23 violation arising out of the same act or failure to act].
4-24 (f) The department may not assess an administrative penalty
4-25 for a minor violation if the person corrects the violation not
4-26 later than the 46th day after the date the person receives notice
5-1 of the violation.
5-2 (g) The department shall establish a system to ensure
5-3 standard and consistent application of penalties regardless of the
5-4 facility location.
5-5 (h) All proceedings for the assessment of an administrative
5-6 penalty under this chapter are subject to Chapter 2001, Government
5-7 Code.
5-8 (i) The department may not assess an administrative penalty
5-9 against a state agency.
5-10 (j) Notwithstanding any other provision of this section, an
5-11 administrative penalty ceases to be incurred on the date a
5-12 violation is corrected. The administrative penalty ceases to be
5-13 incurred only if the facility:
5-14 (1) notifies the department in writing of the
5-15 correction of the violation and of the date the violation was
5-16 corrected; and
5-17 (2) shows later that the violation was corrected.
5-18 (k) Rules adopted under this section shall include specific,
5-19 appropriate, and objective criteria that describe the scope and
5-20 severity of a violation that results in a recommendation for each
5-21 specific penalty.
5-22 SECTION 4. Subchapter C, Chapter 252, Health and Safety
5-23 Code, is amended by adding Section 252.0651 to read as follows:
5-24 Sec. 252.0651. APPLICATION OF OTHER LAW. The department may
5-25 not assess more than one monetary penalty under this chapter for a
5-26 violation arising out of the same act or failure to act.
6-1 SECTION 5. Section 252.066, Health and Safety Code, is
6-2 amended to read as follows:
6-3 Sec. 252.066. NOTICE; REQUEST FOR HEARING [RULES REGARDING
6-4 ADMINISTRATIVE PENALTY]. (a) If, after investigation of a
6-5 possible violation and the facts surrounding that possible
6-6 violation, the department determines that a violation has occurred,
6-7 the department shall give written notice of the violation to the
6-8 person designated by the facility to receive notice. The notice
6-9 shall include:
6-10 (1) a brief summary of the alleged violation;
6-11 (2) a statement of the amount of the proposed penalty
6-12 based on the factors listed in Section 252.065(d); and
6-13 (3) a statement of the person's right to a hearing on
6-14 the occurrence of the violation, the amount of the penalty, or both
6-15 the occurrence of the violation and the amount of the penalty. [The
6-16 board shall adopt rules governing the assessment of administrative
6-17 penalties under this chapter, including rules providing procedures
6-18 for:]
6-19 [(1) giving notice of a violation to a facility;]
6-20 [(2) payment and refund of a penalty; and]
6-21 [(3) hearings and appeals.]
6-22 (b) Not later than the 20th day after the date on which the
6-23 notice is received, the person notified may accept the
6-24 determination of the department made under this section, including
6-25 the proposed penalty, or may make a written request for a hearing
6-26 on that determination. [Rules adopted under this section shall
7-1 include specific and objective criteria that describe the scope and
7-2 severity of a violation that results in a recommendation for each
7-3 specific penalty. A penalty must be appropriate to the violation.]
7-4 (c) If the person notified under this section of the
7-5 violation accepts the determination of the department or if the
7-6 person fails to respond in a timely manner to the notice, the
7-7 commissioner of human services or the commissioner's designee shall
7-8 issue an order approving the determination and ordering that the
7-9 person pay the proposed penalty. [The rules must establish a
7-10 system to ensure standard and consistent application of penalties
7-11 by local surveyors and across different areas of the state.]
7-12 [(d) The department may prescribe a per diem penalty. The
7-13 per diem penalty ceases on the date a violation is corrected. The
7-14 per diem penalty ceases only if the facility notifies the
7-15 department in writing that the violation has been corrected and of
7-16 the date of the correction and shows later that the violation was
7-17 corrected.]
7-18 [(e) For purposes of this section, "immediate and serious
7-19 threat" means a situation in which there is a high probability that
7-20 serious harm or injury to residents could occur at any time or has
7-21 already occurred and may occur again if residents are not protected
7-22 effectively from the harm or if the threat is not removed.]
7-23 SECTION 6. Subchapter C, Chapter 252, Health and Safety
7-24 Code, is amended by adding Sections 252.067 through 252.071 to read
7-25 as follows:
7-26 Sec. 252.067. HEARING; ORDER. (a) If the person notified
8-1 requests a hearing, the department shall:
8-2 (1) set a hearing;
8-3 (2) give written notice of the hearing to the person;
8-4 and
8-5 (3) designate a hearings examiner to conduct the
8-6 hearing.
8-7 (b) The hearings examiner shall make findings of fact and
8-8 conclusions of law and shall promptly issue to the commissioner of
8-9 human services or the commissioner's designee a proposal for
8-10 decision as to the occurrence of the violation and a recommendation
8-11 as to the amount of the proposed penalty if a penalty is determined
8-12 to be warranted.
8-13 (c) Based on the findings of fact and conclusions of law and
8-14 the recommendations of the hearings examiner, the commissioner of
8-15 human services or the commissioner's designee by order may find
8-16 that a violation has occurred and may assess a penalty or may find
8-17 that no violation has occurred.
8-18 Sec. 252.068. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
8-19 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
8-20 the order under Section 252.067(c) to the person alleged to have
8-21 committed the violation and the person designated by the facility
8-22 to receive notice under Section 252.066. The notice must include:
8-23 (1) separate statements of the findings of fact and
8-24 conclusions of law;
8-25 (2) the amount of any penalty assessed; and
8-26 (3) a statement of the right of the person to judicial
9-1 review of the order.
9-2 (b) Not later than the 30th day after the date on which the
9-3 decision becomes final as provided by Chapter 2001, Government
9-4 Code, the person shall:
9-5 (1) pay the penalty; or
9-6 (2) file a petition for judicial review contesting the
9-7 occurrence of the violation, the amount of the penalty, or both the
9-8 occurrence of the violation and the amount of the penalty.
9-9 (c) Within the 30-day period, a person who acts under
9-10 Subsection (b)(2) may:
9-11 (1) stay enforcement of the penalty by:
9-12 (A) paying the penalty to the court for
9-13 placement in an escrow account; or
9-14 (B) giving to the court a supersedeas bond that
9-15 is approved by the court for the amount of the penalty and that is
9-16 effective until all judicial review of the order becomes final; or
9-17 (2) request the court to stay enforcement of the
9-18 penalty by:
9-19 (A) filing with the court a sworn affidavit of
9-20 the person stating that the person is financially unable to pay the
9-21 amount of the penalty and is financially unable to give the
9-22 supersedeas bond; and
9-23 (B) giving a copy of the affidavit to the
9-24 department by certified mail.
9-25 (d) If the department receives a copy of an affidavit under
9-26 Subsection (c)(2), the department may file with the court, within
10-1 10 days after the date the copy is received, a contest to the
10-2 affidavit. The court shall hold a hearing on the facts alleged in
10-3 the affidavit as soon as practicable and shall stay the enforcement
10-4 of the penalty on finding that the alleged facts are true. The
10-5 person who files an affidavit has the burden of proving that the
10-6 person is financially unable to pay the penalty and to give a
10-7 supersedeas bond.
10-8 (e) If the person does not pay the penalty and the
10-9 enforcement of the penalty is not stayed, the department may refer
10-10 the matter to the attorney general for collection of the penalty.
10-11 (f) Judicial review of the order:
10-12 (1) is instituted by filing a petition as provided by
10-13 Subchapter G, Chapter 2001, Government Code; and
10-14 (2) is under the substantial evidence rule.
10-15 (g) If the court sustains the occurrence of the violation,
10-16 the court may uphold or reduce the amount of the penalty and order
10-17 the person to pay the full or reduced amount of the penalty. If
10-18 the court does not sustain the occurrence of the violation, the
10-19 court shall order that no penalty is owed.
10-20 (h) When the judgment of the court becomes final, the court
10-21 shall proceed under this subsection. If the person paid the amount
10-22 of the penalty under Subsection (c)(1)(A) and if that amount is
10-23 reduced or is not upheld by the court, the court shall order that
10-24 the appropriate amount plus accrued interest be remitted to the
10-25 person. The rate of the interest is the rate charged on loans to
10-26 depository institutions by the New York Federal Reserve Bank, and
11-1 the interest shall be paid for the period beginning on the date the
11-2 penalty was paid and ending on the date the penalty is remitted.
11-3 If the person gave a supersedeas bond and if the penalty is not
11-4 upheld by the court, the court shall order the release of the
11-5 escrow account or bond. If the person gave a supersedeas bond and
11-6 if the amount of the penalty is reduced, the court shall order the
11-7 release of the bond after the person pays the amount.
11-8 Sec. 252.069. PENALTY DEPOSITED TO STATE TREASURY. An
11-9 administrative penalty collected under this subchapter shall be
11-10 deposited in the state treasury to the credit of the general
11-11 revenue fund.
11-12 Sec. 252.070. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
11-13 ADMINISTRATIVE PENALTY. (a) If the attorney general brings an
11-14 action against a person under Section 252.062 or 252.064 or to
11-15 enforce an administrative penalty assessed under Section 252.065
11-16 and an injunction is granted against the person or the person is
11-17 found liable for a civil or administrative penalty, the attorney
11-18 general may recover, on behalf of the attorney general and the
11-19 department, reasonable expenses and costs.
11-20 (b) For purposes of this section, reasonable expenses and
11-21 costs include expenses incurred by the department and the attorney
11-22 general in the investigation, initiation, and prosecution of an
11-23 action, including reasonable investigative costs, attorney's fees,
11-24 witness fees, and deposition expenses.
11-25 Sec. 252.071. AMELIORATION OF VIOLATION. In lieu of
11-26 ordering payment of an administrative penalty authorized by this
12-1 subchapter, the department may require a person subject to the
12-2 penalty to use, under the supervision of the department, all or
12-3 part of the amount of the penalty to ameliorate the violation or to
12-4 improve services, other than administrative services, in the
12-5 facility affected by the violation.
12-6 SECTION 7. (a) This Act takes effect September 1, 1999.
12-7 (b) The changes in law made by this Act relating to an
12-8 administrative penalty apply only to a violation that occurs on or
12-9 after the effective date of this Act. For the purpose of this
12-10 section, an offense is committed before the effective date of this
12-11 Act if any element of the offense occurs before that date. A
12-12 violation that occurred before the effective date of this Act is
12-13 covered by the law in effect when the violation occurred, and the
12-14 former law is continued in effect for that purpose.
12-15 SECTION 8. The importance of this legislation and the
12-16 crowded condition of the calendars in both houses create an
12-17 emergency and an imperative public necessity that the
12-18 constitutional rule requiring bills to be read on three several
12-19 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 196 passed the Senate on
March 23, 1999, by a viva-voce vote; and that the Senate concurred
in House amendment on May 17, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 196 passed the House, with
amendment, on May 11, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor