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