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