By Madla S.B. No. 196
76R702 MCK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to administrative penalties for intermediate care
1-3 facilities for the mentally retarded.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 252.065, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The department
1-8 may assess an administrative penalty against a facility that
1-9 violates this chapter or a rule adopted under this chapter [as
1-10 specified by this section].
1-11 (b) The penalty shall be not less than $100 or more than
1-12 $1,000 for each violation. Each day of a violation that occurs
1-13 before the day on which the person receives written notice of the
1-14 violation from the department does not constitute a separate
1-15 violation and shall be considered to be one violation. Each day of
1-16 a continuing violation that occurs after the day on which the
1-17 person receives written notice of the violation from the department
1-18 constitutes a separate violation. [The department by rule shall
1-19 establish gradations and amounts of penalties.]
1-20 (c) The department by rule shall specify each violation for
1-21 which an administrative penalty may be assessed. In determining
1-22 which violations warrant penalties, the department shall consider:
1-23 (1) the seriousness of the violation, including the
1-24 nature, circumstances, extent, and gravity of the violation and the
2-1 hazard of the violation to the health or safety of clients; and
2-2 (2) whether the affected facility had identified the
2-3 violation as a part of its internal quality assurance process and
2-4 had made appropriate progress on correction. [In determining the
2-5 amount of a penalty, the department shall consider:]
2-6 [(1) the gradations of penalties established under
2-7 Subsection (b);]
2-8 [(2) the seriousness of the violation, including the
2-9 nature, circumstances, extent, and gravity of the violation;]
2-10 [(3) the hazard or potential hazard created by the
2-11 violation to the public health and safety;]
2-12 [(4) any previous violations;]
2-13 [(5) the amount necessary to deter future violations;]
2-14 [(6) efforts made to correct the violation;]
2-15 [(7) the size of the facility; and]
2-16 [(8) any other matter justice may require.]
2-17 (d) The department by rule shall establish a schedule of
2-18 appropriate and graduated penalties for each violation based on:
2-19 (1) the seriousness of the violation, including the
2-20 nature, circumstances, extent, and gravity of the violation and the
2-21 hazard of the violation to the health or safety of clients;
2-22 (2) the history of previous violations;
2-23 (3) whether the affected facility had identified the
2-24 violation as a part of its internal quality assurance process and
2-25 had made appropriate progress on correction;
2-26 (4) the amount necessary to deter future violations;
2-27 (5) efforts made to correct the violation; and
3-1 (6) any other matters that justice may require. [The
3-2 penalty may not exceed $5,000 for each violation. Each day of a
3-3 continuing violation constitutes a separate violation.]
3-4 (e) The department by rule shall provide the facility with a
3-5 reasonable period of time following the first day of a violation to
3-6 correct the violation before assessing an administrative penalty if
3-7 a plan of correction has been implemented. [The department may not
3-8 assess a penalty under both this subchapter and Section 32.021,
3-9 Human Resources Code, for a violation arising out of the same act
3-10 or failure to act.]
3-11 (f) An administrative penalty may not be assessed for minor
3-12 violations unless those violations are of a continuing nature or
3-13 are not corrected.
3-14 (g) The department shall establish a system to ensure
3-15 standard and consistent application of penalties regardless of the
3-16 facility location.
3-17 (h) All proceedings for the assessment of an administrative
3-18 penalty under this chapter are subject to Chapter 2001, Government
3-19 Code.
3-20 (i) The department may not assess an administrative penalty
3-21 against a state agency.
3-22 SECTION 2. Section 252.066, Health and Safety Code, is
3-23 amended to read as follows:
3-24 Sec. 252.066. NOTICE; REQUEST FOR HEARING. [RULES
3-25 REGARDING ADMINISTRATIVE PENALTY.] (a) If, after investigation of
3-26 a possible violation and the facts surrounding that possible
3-27 violation, the department determines that a violation has occurred,
4-1 the department shall give written notice of the violation to the
4-2 person alleged to have committed the violation. The notice shall
4-3 include:
4-4 (1) a brief summary of the alleged violation;
4-5 (2) a statement of the amount of the proposed penalty
4-6 based on the factors listed in Section 252.065(d); and
4-7 (3) a statement of the person's right to a hearing on
4-8 the occurrence of the violation, the amount of the penalty, or both
4-9 the occurrence of the violation and the amount of the penalty. [The
4-10 board shall adopt rules governing the assessment of administrative
4-11 penalties under this chapter, including rules providing procedures
4-12 for:]
4-13 [(1) giving notice of a violation to a facility;]
4-14 [(2) payment and refund of a penalty; and]
4-15 [(3) hearings and appeals.]
4-16 (b) Not later than the 20th day after the date on which the
4-17 notice is received, the person notified may accept the
4-18 determination of the department made under this section, including
4-19 the proposed penalty, or may make a written request for a hearing
4-20 on that determination. [Rules adopted under this section shall
4-21 include specific and objective criteria that describe the scope and
4-22 severity of a violation that results in a recommendation for each
4-23 specific penalty. A penalty must be appropriate to the violation.]
4-24 (c) If the person notified of the violation accepts the
4-25 determination of the department or if the person fails to respond
4-26 in a timely manner to the notice, the commissioner of human
4-27 resources or the commissioner's designee shall issue an order
5-1 approving the determination and ordering that the person pay the
5-2 proposed penalty. [The rules must establish a system to ensure
5-3 standard and consistent application of penalties by local surveyors
5-4 and across different areas of the state.]
5-5 [(d) The department may prescribe a per diem penalty. The
5-6 per diem penalty ceases on the date a violation is corrected. The
5-7 per diem penalty ceases only if the facility notifies the
5-8 department in writing that the violation has been corrected and of
5-9 the date of the correction and shows later that the violation was
5-10 corrected.]
5-11 [(e) For purposes of this section, "immediate and serious
5-12 threat" means a situation in which there is a high probability that
5-13 serious harm or injury to residents could occur at any time or has
5-14 already occurred and may occur again if residents are not protected
5-15 effectively from the harm or if the threat is not removed.]
5-16 SECTION 3. Subchapter C, Chapter 252, Health and Safety
5-17 Code, is amended by adding Sections 252.067, 252.068, 252.069, and
5-18 252.070 to read as follows:
5-19 Sec. 252.067. HEARING; ORDER. (a) If the person notified
5-20 requests a hearing, the department shall:
5-21 (1) set a hearing;
5-22 (2) give written notice of the hearing to the person;
5-23 and
5-24 (3) designate a hearings examiner to conduct the
5-25 hearing.
5-26 (b) The hearings examiner shall make findings of fact and
5-27 conclusions of law and shall promptly issue to the commissioner or
6-1 the commissioner's designee a proposal for decision as to the
6-2 occurrence of the violation and a recommendation as to the amount
6-3 of the proposed penalty if a penalty is determined to be warranted.
6-4 (c) Based on the findings of fact and conclusions of law and
6-5 the recommendations of the hearings examiner, the commissioner of
6-6 human resources or the commissioner's designee by order may find
6-7 that a violation has occurred and may assess a penalty or may find
6-8 that no violation has occurred.
6-9 Sec. 252.068. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
6-10 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
6-11 the order under Section 252.067(c) to the person alleged to have
6-12 committed the violation. The notice must include:
6-13 (1) separate statements of the findings of fact and
6-14 conclusions of law;
6-15 (2) the amount of any penalty assessed; and
6-16 (3) a statement of the right of the person to judicial
6-17 review of the order.
6-18 (b) Not later than the 30th day after the date on which the
6-19 decision becomes final as provided by Chapter 2001, Government
6-20 Code, the person shall:
6-21 (1) pay the penalty; or
6-22 (2) file a petition for judicial review contesting the
6-23 occurrence of the violation, the amount of the penalty, or both the
6-24 occurrence of the violation and the amount of the penalty.
6-25 (c) Within the 30-day period, a person who acts under
6-26 Subsection (b)(2) may:
6-27 (1) stay enforcement of the penalty by:
7-1 (A) paying the penalty to the court for
7-2 placement in an escrow account; or
7-3 (B) giving to the court a supersedeas bond that
7-4 is approved by the court for the amount of the penalty and that is
7-5 effective until all judicial review of the order becomes final; or
7-6 (2) request the court to stay enforcement of the
7-7 penalty by:
7-8 (A) filing with the court a sworn affidavit of
7-9 the person stating that the person is financially unable to pay the
7-10 amount of the penalty and is financially unable to give the
7-11 supersedeas bond; and
7-12 (B) giving a copy of the affidavit to the
7-13 department by certified mail.
7-14 (d) If the department receives a copy of an affidavit under
7-15 Subsection (c)(2), the department may file with the court, within
7-16 10 days after the date the copy is received, a contest to the
7-17 affidavit. The court shall hold a hearing on the facts alleged in
7-18 the affidavit as soon as practicable and shall stay the enforcement
7-19 of the penalty on finding that the alleged facts are true. The
7-20 person who files an affidavit has the burden of proving that the
7-21 person is financially unable to pay the penalty and to give a
7-22 supersedeas bond.
7-23 (e) If the person does not pay the penalty and the
7-24 enforcement of the penalty is not stayed, the department may refer
7-25 the matter to the attorney general for collection of the penalty.
7-26 (f) Judicial review of the order:
7-27 (1) is instituted by filing a petition as provided by
8-1 Subchapter G, Chapter 2001, Government Code; and
8-2 (2) is under the substantial evidence rule.
8-3 (g) If the court sustains the occurrence of the violation,
8-4 the court may uphold or reduce the amount of the penalty and order
8-5 the person to pay the full or reduced amount of the penalty. If
8-6 the court does not sustain the occurrence of the violation, the
8-7 court shall order that no penalty is owed.
8-8 (h) When the judgment of the court becomes final, the court
8-9 shall proceed under this subsection. If the person paid the amount
8-10 of the penalty under Subsection (c)(1)(A) and if that amount is
8-11 reduced or is not upheld by the court, the court shall order that
8-12 the appropriate amount plus accrued interest be remitted to the
8-13 person. The rate of the interest is the rate charged on loans to
8-14 depository institutions by the New York Federal Reserve Bank, and
8-15 the interest shall be paid for the period beginning on the date the
8-16 penalty was paid and ending on the date the penalty is remitted.
8-17 If the person gave a supersedeas bond and if the penalty is not
8-18 upheld by the court, the court shall order the release of the
8-19 escrow account or bond. If the person gave a supersedeas bond and
8-20 if the amount of the penalty is reduced, the court shall order the
8-21 release of the bond after the person pays the amount.
8-22 Sec. 252.069. PENALTY DEPOSITED TO STATE TREASURY. An
8-23 administrative penalty collected under this subchapter shall be
8-24 deposited in the state treasury to the credit of the general
8-25 revenue fund.
8-26 Sec. 252.070. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
8-27 ADMINISTRATIVE PENALTY. (a) If the attorney general brings an
9-1 action against a person under Section 252.062 or 252.064 or to
9-2 enforce an administrative penalty assessed under Section 252.065
9-3 and an injunction is granted against the person or the person is
9-4 found liable for a civil or administrative penalty, the attorney
9-5 general may recover, on behalf of the attorney general and the
9-6 department, reasonable expenses and costs.
9-7 (b) For purposes of this section, reasonable expenses and
9-8 costs include expenses incurred by the department and the attorney
9-9 general in the investigation, initiation, and prosecution of an
9-10 action, including reasonable investigative costs, attorney's fees,
9-11 witness fees, and deposition expenses.
9-12 SECTION 4. (a) This Act takes effect September 1, 1999.
9-13 (b) The changes in law made by this Act relating to an
9-14 administrative penalty apply only to a violation that occurs on or
9-15 after the effective date of this Act. For the purposes of this
9-16 section, an offense is committed before the effective date of this
9-17 Act if any element of the offense occurs before that date. A
9-18 violation that occurred before the effective date of this Act is
9-19 covered by the law in effect when the violation occurred, and the
9-20 former law is continued in effect for that purpose.
9-21 SECTION 5. The importance of this legislation and the
9-22 crowded condition of the calendars in both houses create an
9-23 emergency and an imperative public necessity that the
9-24 constitutional rule requiring bills to be read on three several
9-25 days in each house be suspended, and this rule is hereby suspended.