1-1 By: Madla S.B. No. 196
1-2 (In the Senate - Filed January 20, 1999; January 28, 1999,
1-3 read first time and referred to Committee on Health Services;
1-4 March 18, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; March 18, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 196 By: Madla
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to administrative penalties for intermediate care
1-11 facilities for the mentally retarded.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 252.033, Health and Safety Code, is
1-14 amended by adding Subsection (h) to read as follows:
1-15 (h) The department by rule shall define specific,
1-16 appropriate, and objective criteria on which it may deny an initial
1-17 license application or license renewal or revoke a license.
1-18 SECTION 2. Subchapter B, Chapter 252, Health and Safety
1-19 Code, is amended by adding Section 252.044 to read as follows:
1-20 Sec. 252.044. REPORTING VIOLATIONS. (a) The department or
1-21 the department's representative conducting an inspection, survey,
1-22 or investigation under this chapter shall:
1-23 (1) list each violation of a law or rule on a form
1-24 designed by the department for inspections; and
1-25 (2) identify the specific law or rule the facility
1-26 violates.
1-27 (b) At the conclusion of an inspection, survey, or
1-28 investigation under this chapter, the department or the
1-29 department's representative conducting the inspection, survey, or
1-30 investigation shall discuss the violations with the facility's
1-31 management in an exit conference. The department or the
1-32 department's representative shall leave a written list of the
1-33 violations with the facility at the time of the exit conference.
1-34 If the department or the department's representative discovers any
1-35 additional violations during the review of field notes or
1-36 preparation of the official final list, the department or the
1-37 department's representative shall give the facility an additional
1-38 exit conference regarding the additional violations.
1-39 (c) The facility shall submit a plan to correct the
1-40 violations to the regional director not later than the 10th day
1-41 after the date the facility receives the final statement of
1-42 violations.
1-43 SECTION 3. Section 252.065, Health and Safety Code, is
1-44 amended to read as follows:
1-45 Sec. 252.065. ADMINISTRATIVE PENALTY. (a) The department
1-46 may assess an administrative penalty against a facility that
1-47 violates this chapter or a rule adopted under this chapter [as
1-48 specified by this section].
1-49 (b) The penalty shall be not less than $100 or more than
1-50 $1,000 for each violation. Each day of a violation that occurs
1-51 before the day on which the person receives written notice of the
1-52 violation from the department does not constitute a separate
1-53 violation and shall be considered to be one violation. Each day of
1-54 a continuing violation that occurs after the day on which the
1-55 person receives written notice of the violation from the department
1-56 constitutes a separate violation. [The department by rule shall
1-57 establish gradations and amounts of penalties.]
1-58 (c) The department by rule shall specify each violation for
1-59 which an administrative penalty may be assessed. In determining
1-60 which violations warrant penalties, the department shall consider:
1-61 (1) the seriousness of the violation, including the
1-62 nature, circumstances, extent, and gravity of the violation and the
1-63 hazard of the violation to the health or safety of clients; and
1-64 (2) whether the affected facility had identified the
2-1 violation as a part of its internal quality assurance process and
2-2 had made appropriate progress on correction. [In determining the
2-3 amount of a penalty, the department shall consider:]
2-4 [(1) the gradations of penalties established under
2-5 Subsection (b);]
2-6 [(2) the seriousness of the violation, including the
2-7 nature, circumstances, extent, and gravity of the violation;]
2-8 [(3) the hazard or potential hazard created by the
2-9 violation to the public health and safety;]
2-10 [(4) any previous violations;]
2-11 [(5) the amount necessary to deter future violations;]
2-12 [(6) efforts made to correct the violation;]
2-13 [(7) the size of the facility; and]
2-14 [(8) any other matter justice may require.]
2-15 (d) The department by rule shall establish a specific and
2-16 detailed schedule of appropriate and graduated penalties for each
2-17 violation based on:
2-18 (1) the seriousness of the violation, including the
2-19 nature, circumstances, extent, and gravity of the violation and the
2-20 hazard of the violation to the health or safety of clients;
2-21 (2) the history of previous violations;
2-22 (3) whether the affected facility had identified the
2-23 violation as a part of its internal quality assurance process and
2-24 had made appropriate progress on correction;
2-25 (4) the amount necessary to deter future violations;
2-26 (5) efforts made to correct the violation;
2-27 (6) the size of the facility; and
2-28 (7) any other matters that justice may require. [The
2-29 penalty may not exceed $5,000 for each violation. Each day of a
2-30 continuing violation constitutes a separate violation.]
2-31 (e) The department by rule shall provide the facility with a
2-32 reasonable period of time, not less than 45 days, following the
2-33 first day of a violation to correct the violation before assessing
2-34 an administrative penalty if a plan of correction has been
2-35 implemented [may not assess a penalty under both this subchapter
2-36 and Section 32.021, Human Resources Code, for a violation arising
2-37 out of the same act or failure to act].
2-38 (f) The department may not assess an administrative penalty
2-39 for a minor violation if the person corrects the violation not
2-40 later than the 46th day after the date the person receives notice
2-41 of the violation.
2-42 (g) The department shall establish a system to ensure
2-43 standard and consistent application of penalties regardless of the
2-44 facility location.
2-45 (h) All proceedings for the assessment of an administrative
2-46 penalty under this chapter are subject to Chapter 2001, Government
2-47 Code.
2-48 (i) The department may not assess an administrative penalty
2-49 against a state agency.
2-50 (j) Notwithstanding any other provision of this section, an
2-51 administrative penalty ceases to be incurred on the date a
2-52 violation is corrected. The administrative penalty ceases to be
2-53 incurred only if the facility:
2-54 (1) notifies the department in writing of the
2-55 correction of the violation and of the date the violation was
2-56 corrected; and
2-57 (2) shows later that the violation was corrected.
2-58 SECTION 4. Section 252.066, Health and Safety Code, is
2-59 amended to read as follows:
2-60 Sec. 252.066. NOTICE; REQUEST FOR HEARING [RULES REGARDING
2-61 ADMINISTRATIVE PENALTY]. (a) If, after investigation of a
2-62 possible violation and the facts surrounding that possible
2-63 violation, the department determines that a violation has occurred,
2-64 the department shall give written notice of the violation to the
2-65 person designated by the facility to receive notice. The notice
2-66 shall include:
2-67 (1) a brief summary of the alleged violation;
2-68 (2) a statement of the amount of the proposed penalty
2-69 based on the factors listed in Section 252.065(d); and
3-1 (3) a statement of the person's right to a hearing on
3-2 the occurrence of the violation, the amount of the penalty, or both
3-3 the occurrence of the violation and the amount of the penalty. [The
3-4 board shall adopt rules governing the assessment of administrative
3-5 penalties under this chapter, including rules providing procedures
3-6 for:]
3-7 [(1) giving notice of a violation to a facility;]
3-8 [(2) payment and refund of a penalty; and]
3-9 [(3) hearings and appeals.]
3-10 (b) Not later than the 20th day after the date on which the
3-11 notice is received, the person notified may accept the
3-12 determination of the department made under this section, including
3-13 the proposed penalty, or may make a written request for a hearing
3-14 on that determination. [Rules adopted under this section shall
3-15 include specific and objective criteria that describe the scope and
3-16 severity of a violation that results in a recommendation for each
3-17 specific penalty. A penalty must be appropriate to the violation.]
3-18 (c) If the person notified of the violation accepts the
3-19 determination of the department or if the person fails to respond
3-20 in a timely manner to the notice, the commissioner of human
3-21 services or the commissioner's designee shall issue an order
3-22 approving the determination and ordering that the person pay the
3-23 proposed penalty. [The rules must establish a system to ensure
3-24 standard and consistent application of penalties by local surveyors
3-25 and across different areas of the state.]
3-26 [(d) The department may prescribe a per diem penalty. The
3-27 per diem penalty ceases on the date a violation is corrected. The
3-28 per diem penalty ceases only if the facility notifies the
3-29 department in writing that the violation has been corrected and of
3-30 the date of the correction and shows later that the violation was
3-31 corrected.]
3-32 [(e) For purposes of this section, "immediate and serious
3-33 threat" means a situation in which there is a high probability that
3-34 serious harm or injury to residents could occur at any time or has
3-35 already occurred and may occur again if residents are not protected
3-36 effectively from the harm or if the threat is not removed.]
3-37 SECTION 5. Subchapter C, Chapter 252, Health and Safety
3-38 Code, is amended by adding Sections 252.067 through 252.071 to read
3-39 as follows:
3-40 Sec. 252.067. HEARING; ORDER. (a) If the person notified
3-41 requests a hearing, the department shall:
3-42 (1) set a hearing;
3-43 (2) give written notice of the hearing to the person;
3-44 and
3-45 (3) designate a hearings examiner to conduct the
3-46 hearing.
3-47 (b) The hearings examiner shall make findings of fact and
3-48 conclusions of law and shall promptly issue to the commissioner of
3-49 human services or the commissioner's designee a proposal for
3-50 decision as to the occurrence of the violation and a recommendation
3-51 as to the amount of the proposed penalty if a penalty is determined
3-52 to be warranted.
3-53 (c) Based on the findings of fact and conclusions of law and
3-54 the recommendations of the hearings examiner, the commissioner of
3-55 human services or the commissioner's designee by order may find
3-56 that a violation has occurred and may assess a penalty or may find
3-57 that no violation has occurred.
3-58 Sec. 252.068. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
3-59 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
3-60 the order under Section 252.067(c) to the person alleged to have
3-61 committed the violation. The notice must include:
3-62 (1) separate statements of the findings of fact and
3-63 conclusions of law;
3-64 (2) the amount of any penalty assessed; and
3-65 (3) a statement of the right of the person to judicial
3-66 review of the order.
3-67 (b) Not later than the 30th day after the date on which the
3-68 decision becomes final as provided by Chapter 2001, Government
3-69 Code, the person shall:
4-1 (1) pay the penalty; or
4-2 (2) file a petition for judicial review contesting the
4-3 occurrence of the violation, the amount of the penalty, or both the
4-4 occurrence of the violation and the amount of the penalty.
4-5 (c) Within the 30-day period, a person who acts under
4-6 Subsection (b)(2) may:
4-7 (1) stay enforcement of the penalty by:
4-8 (A) paying the penalty to the court for
4-9 placement in an escrow account; or
4-10 (B) giving to the court a supersedeas bond that
4-11 is approved by the court for the amount of the penalty and that is
4-12 effective until all judicial review of the order becomes final; or
4-13 (2) request the court to stay enforcement of the
4-14 penalty by:
4-15 (A) filing with the court a sworn affidavit of
4-16 the person stating that the person is financially unable to pay the
4-17 amount of the penalty and is financially unable to give the
4-18 supersedeas bond; and
4-19 (B) giving a copy of the affidavit to the
4-20 department by certified mail.
4-21 (d) If the department receives a copy of an affidavit under
4-22 Subsection (c)(2), the department may file with the court, within
4-23 10 days after the date the copy is received, a contest to the
4-24 affidavit. The court shall hold a hearing on the facts alleged in
4-25 the affidavit as soon as practicable and shall stay the enforcement
4-26 of the penalty on finding that the alleged facts are true. The
4-27 person who files an affidavit has the burden of proving that the
4-28 person is financially unable to pay the penalty and to give a
4-29 supersedeas bond.
4-30 (e) If the person does not pay the penalty and the
4-31 enforcement of the penalty is not stayed, the department may refer
4-32 the matter to the attorney general for collection of the penalty.
4-33 (f) Judicial review of the order:
4-34 (1) is instituted by filing a petition as provided by
4-35 Subchapter G, Chapter 2001, Government Code; and
4-36 (2) is under the substantial evidence rule.
4-37 (g) If the court sustains the occurrence of the violation,
4-38 the court may uphold or reduce the amount of the penalty and order
4-39 the person to pay the full or reduced amount of the penalty. If
4-40 the court does not sustain the occurrence of the violation, the
4-41 court shall order that no penalty is owed.
4-42 (h) When the judgment of the court becomes final, the court
4-43 shall proceed under this subsection. If the person paid the amount
4-44 of the penalty under Subsection (c)(1)(A) and if that amount is
4-45 reduced or is not upheld by the court, the court shall order that
4-46 the appropriate amount plus accrued interest be remitted to the
4-47 person. The rate of the interest is the rate charged on loans to
4-48 depository institutions by the New York Federal Reserve Bank, and
4-49 the interest shall be paid for the period beginning on the date the
4-50 penalty was paid and ending on the date the penalty is remitted.
4-51 If the person gave a supersedeas bond and if the penalty is not
4-52 upheld by the court, the court shall order the release of the
4-53 escrow account or bond. If the person gave a supersedeas bond and
4-54 if the amount of the penalty is reduced, the court shall order the
4-55 release of the bond after the person pays the amount.
4-56 Sec. 252.069. PENALTY DEPOSITED TO STATE TREASURY. An
4-57 administrative penalty collected under this subchapter shall be
4-58 deposited in the state treasury to the credit of the general
4-59 revenue fund.
4-60 Sec. 252.070. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
4-61 ADMINISTRATIVE PENALTY. (a) If the attorney general brings an
4-62 action against a person under Section 252.062 or 252.064 or to
4-63 enforce an administrative penalty assessed under Section 252.065
4-64 and an injunction is granted against the person or the person is
4-65 found liable for a civil or administrative penalty, the attorney
4-66 general may recover, on behalf of the attorney general and the
4-67 department, reasonable expenses and costs.
4-68 (b) For purposes of this section, reasonable expenses and
4-69 costs include expenses incurred by the department and the attorney
5-1 general in the investigation, initiation, and prosecution of an
5-2 action, including reasonable investigative costs, attorney's fees,
5-3 witness fees, and deposition expenses.
5-4 Sec. 252.071. AMELIORATION OF VIOLATION. In lieu of
5-5 ordering payment of an administrative penalty authorized by this
5-6 subchapter, the department may require a person subject to the
5-7 penalty to use, under the supervision of the department, all or
5-8 part of the amount of the penalty to ameliorate the violation or to
5-9 improve services, other than administrative services, in the
5-10 facility affected by the violation.
5-11 SECTION 6. (a) This Act takes effect September 1, 1999.
5-12 (b) The changes in law made by this Act relating to an
5-13 administrative penalty apply only to a violation that occurs on or
5-14 after the effective date of this Act. For the purpose of this
5-15 section, an offense is committed before the effective date of this
5-16 Act if any element of the offense occurs before that date. A
5-17 violation that occurred before the effective date of this Act is
5-18 covered by the law in effect when the violation occurred, and the
5-19 former law is continued in effect for that purpose.
5-20 SECTION 7. The importance of this legislation and the
5-21 crowded condition of the calendars in both houses create an
5-22 emergency and an imperative public necessity that the
5-23 constitutional rule requiring bills to be read on three several
5-24 days in each house be suspended, and this rule is hereby suspended.
5-25 * * * * *