By:  Moncrief, et al.                                  S.B. No. 200
                                A BILL TO BE ENTITLED
                                       AN ACT
 1-1     relating to imposition of administrative penalties against personal
 1-2     care facilities.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Section 247.002, Health and Safety Code, is
 1-5     amended by adding Subdivision (6) to read as follows:
 1-6                 (6)  "Commissioner" means the commissioner of human
 1-7     services.
 1-8           SECTION 2.  Subchapter C, Chapter 247, Health and Safety
 1-9     Code, is amended by adding Sections 247.0451 through 247.0457 to
1-10     read as follows:
1-11           Sec. 247.0451.  ADMINISTRATIVE PENALTY.  (a)  The department
1-12     may assess an administrative penalty against a person who:
1-13                 (1)  violates this chapter or a rule, standard, or
1-14     order adopted or license issued under this chapter;
1-15                 (2)  makes a false statement, that the person knows or
1-16     should know is false, of a material fact:
1-17                       (A)  on an application for issuance or renewal of
1-18     a license or in an attachment to the application; or
1-19                       (B)  with respect to a matter under investigation
1-20     by the department;
1-21                 (3)  refuses to allow a representative of the
1-22     department to inspect:
1-23                       (A)  a book, record, or file required to be
1-24     maintained by a personal care facility; or
 2-1                       (B)  any portion of the premises of a personal
 2-2     care facility;
 2-3                 (4)  wilfully interferes with the work of a
 2-4     representative of the department or the enforcement of this
 2-5     chapter;
 2-6                 (5)  wilfully interferes with a representative of the
 2-7     department preserving evidence of a violation of this chapter or a
 2-8     rule, standard, or order adopted or license issued under this
 2-9     chapter; or
2-10                 (6)  fails to pay a penalty assessed under this chapter
2-11     not later than the 10th day after the date the assessment of the
2-12     penalty becomes final.
2-13           (b)  Except as provided by Subsection (d) and Section
2-14     247.0452(c), the penalty may not exceed $5,000 for each violation.
2-15           (c)  Any violation that results in the assessment of an
2-16     administrative penalty shall be provided in writing to the personal
2-17     care facility.  The written violation must identify the specific
2-18     law or regulation that has been violated and include the name of
2-19     the surveyor that cited the violation.
2-20           (d)  The penalty for a violation of a right of a resident
2-21     under Section 247.065 may not exceed $1,000 for each violation.
2-22     This subsection does not apply to conduct that also violates
2-23     another provision in this chapter or a rule, standard, or order
2-24     adopted or license issued under this chapter.
2-25           (e)  The board shall establish gradations of penalties in
2-26     accordance with the relative seriousness of the violation.
 3-1           (f)  In determining the amount of a penalty, the department
 3-2     shall consider any matter that justice may require, including:
 3-3                 (1)  the gradations of penalties established under
 3-4     Subsection (e);
 3-5                 (2)  the seriousness of the violation, including the
 3-6     nature, circumstances, extent, and gravity of the prohibited act
 3-7     and the hazard or potential hazard created by the act to the health
 3-8     or safety of the public;
 3-9                 (3)  the history of previous violations;
3-10                 (4)  deterrence of future violations; and
3-11                 (5)  efforts to correct the violation.
3-12           (g)  A penalty assessed under Subsection (a)(6) is in
3-13     addition to the penalty previously assessed and not timely paid.
3-14           Sec. 247.0452.  RIGHT TO CORRECT.  (a)  The department may
3-15     not collect an administrative penalty from a personal care facility
3-16     under Section 247.0451 if, not later than the 45th day after the
3-17     date the facility receives notice under Section 247.0453(c), the
3-18     facility corrects the violation.
3-19           (b)  Subsection (a)  does not apply:
3-20                 (1)  to a violation that the department determines:
3-21                       (A)  results in serious harm to or death of a
3-22     resident;
3-23                       (B)  constitutes a serious threat to the health
3-24     or safety of a resident; or
3-25                       (C)  substantially limits the personal care
3-26     facility's capacity to provide care;
 4-1                 (2)  to a violation described by Sections
 4-2     247.0451(a)(2)-(6); or
 4-3                 (3)  to a violation of a right of a resident under
 4-4     Section 247.065.
 4-5           (c)  A personal care facility that corrects a violation must
 4-6     maintain the correction.  If the facility fails to maintain the
 4-7     correction until at least the first anniversary of the date the
 4-8     correction was made, the department may assess and collect an
 4-9     administrative penalty for the subsequent violation.  An
4-10     administrative penalty assessed under this subsection is equal to
4-11     three times the amount of the original penalty assessed but not
4-12     collected.  The department is not required to provide the facility
4-13     with an opportunity under this section to correct the subsequent
4-14     violation.
4-15           Sec. 247.0453.  REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
4-16     (a)  The department may issue a preliminary report stating the
4-17     facts on which the department concludes that a violation of this
4-18     chapter or a rule, standard, or order adopted or license issued
4-19     under this chapter has occurred if the department has:
4-20                 (1)  examined the possible violation and facts
4-21     surrounding the possible violation; and
4-22                 (2)  concluded that a violation has occurred.
4-23           (b)  The report may recommend a penalty under Section
4-24     247.0451 and the amount of the penalty.
4-25           (c)  The department shall give written notice of the report
4-26     to the person charged with the violation not later than the 10th
 5-1     day after the date on which the report is issued.  The notice must
 5-2     include:
 5-3                 (1)  a brief summary of the charges;
 5-4                 (2)  a statement of the amount of penalty recommended;
 5-5                 (3)  a statement of whether the violation is subject to
 5-6     correction under Section 247.0452 and, if the violation is subject
 5-7     to correction under that section, a statement of:
 5-8                       (A)  the date on which the personal care facility
 5-9     must file with the department a plan of correction to be approved
5-10     by the department; and
5-11                       (B)  the date on which the plan of correction
5-12     must be completed to avoid assessment of the penalty; and
5-13                 (4)  a statement that the person charged has a right to
5-14     a hearing on the occurrence of the violation, the amount of the
5-15     penalty, or both.
5-16           (d)  Not later than the 20th day after the date on which the
5-17     notice under Subsection (c) is sent, the person charged may:
5-18                 (1)  give to the department written consent to the
5-19     department's report, including the recommended penalty;
5-20                 (2)  make a written request for a hearing; or
5-21                 (3)  if the violation is subject to correction under
5-22     Section 247.0452, submit a plan of correction to the department for
5-23     approval.
5-24           (e)  If the violation is subject to correction under Section
5-25     247.0452, and the person reports to the department that the
5-26     violation has been corrected, the department shall inspect the
 6-1     correction or take any other step necessary to confirm the
 6-2     correction and shall notify the person that:
 6-3                 (1)  the correction is satisfactory and a penalty will
 6-4     not be assessed; or
 6-5                 (2)  the correction is not satisfactory and a penalty
 6-6     is recommended.
 6-7           (f)  Not later than the 20th day after the date on which a
 6-8     notice under Subsection (e)(2) is sent, the person charged may:
 6-9                 (1)  give to the department written consent to the
6-10     department's report, including the recommended penalty; or
6-11                 (2)  make a written request for a hearing.
6-12           (g)  If the person charged with the violation consents to the
6-13     penalty recommended by the department or does not timely respond to
6-14     a notice sent under Subsection (c) or (e)(2), the commissioner or
6-15     the commissioner's designee shall assess the penalty recommended by
6-16     the department.
6-17           (h)  If the commissioner or the commissioner's designee
6-18     assesses the recommended penalty, the department shall give written
6-19     notice to the person charged of the decision and the person shall
6-20     pay the penalty.
6-21           Sec. 247.0454.  HEARING ON ADMINISTRATIVE PENALTY.  (a)  An
6-22     administrative law judge shall order a hearing and give notice of
6-23     the hearing if a person charged with a violation under Section
6-24     247.0451 timely requests a hearing.
6-25           (b)  The hearing shall be held before an administrative law
6-26     judge.
 7-1           (c)  The administrative law judge shall make findings of fact
 7-2     and conclusions of law and promptly issue to the commissioner a
 7-3     written decision regarding the occurrence of a violation of this
 7-4     chapter or a rule, standard, or order adopted or license issued
 7-5     under this chapter and a recommendation regarding the amount of the
 7-6     proposed penalty if a penalty is warranted.
 7-7           (d)  Based on the findings of fact and conclusions of law and
 7-8     the recommendation of the administrative law judge, the
 7-9     commissioner by order may:
7-10                 (1)  find that a violation has occurred and assess an
7-11     administrative penalty; or
7-12                 (2)  find that a violation has not occurred.
7-13           (e)  Proceedings under this section are subject to Chapter
7-14     2001, Government Code.
7-15           Sec. 247.0455.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
7-16     INTEREST; REFUND.  (a)  The commissioner shall give notice of the
7-17     findings made under Section 247.0454(d) to the person charged.  If
7-18     the commissioner finds that a violation has occurred, the
7-19     commissioner shall give to the person charged written notice of:
7-20                 (1)  the findings;
7-21                 (2)  the amount of the administrative penalty;
7-22                 (3)  the rate of interest payable with respect to the
7-23     penalty and the date on which interest begins to accrue;
7-24                 (4)  whether action under Section 247.0457 is required
7-25     in lieu of payment of all or part of the penalty; and
7-26                 (5)  the person's right to judicial review of the
 8-1     commissioner's order.
 8-2           (b)  Not later than the 30th day after the date on which the
 8-3     commissioner's order is final, the person charged with the penalty
 8-4     shall:
 8-5                 (1)  pay the full amount of the penalty; or
 8-6                 (2)  file a petition for judicial review contesting the
 8-7     occurrence of the violation, the amount of the penalty, the failure
 8-8     to correct the violation to the department's satisfaction, or any
 8-9     combination of these issues.
8-10           (c)  Notwithstanding Subsection (b), the department may
8-11     permit the person to pay a penalty in installments or may require
8-12     the person to use all or part of the amount of the penalty in
8-13     accordance with Section 247.0457.
8-14           (d)  If the person does not pay the penalty within the period
8-15     provided by Subsection (b) or in accordance with Subsection (c), if
8-16     applicable:
8-17                 (1)  the penalty is subject to interest; and
8-18                 (2)  the department may refer the matter to the
8-19     attorney general for collection of the penalty and interest.
8-20           (e)  Interest under Subsection (d)(1) accrues:
8-21                 (1)  at a rate equal to the rate charged on loans to
8-22     depository institutions by the New York Federal Reserve Bank; and
8-23                 (2)  for the period beginning on the date after the
8-24     date on which the penalty becomes due and ending on the date the
8-25     penalty is paid.
8-26           (f)  If a penalty is reduced or not assessed as a result of
 9-1     judicial review, the commissioner shall:
 9-2                 (1)  remit to the person charged the appropriate amount
 9-3     of any penalty payment plus accrued interest; or
 9-4                 (2)  execute a release of the supersedeas bond if one
 9-5     has been posted.
 9-6           (g)  Accrued interest on amounts remitted by the commissioner
 9-7     under Subsection (f)(1) shall be paid:
 9-8                 (1)  at a rate equal to the rate charged on loans to
 9-9     depository institutions by the New York Federal Reserve Bank; and
9-10                 (2)  for the period beginning on the date the penalty
9-11     is paid and ending on the date the penalty is remitted to the
9-12     person charged.
9-13           Sec. 247.0456.  APPLICATION OF OTHER LAW.  Except as provided
9-14     by Section 247.0451(a)(6) or 247.0452(c), the department may not
9-15     assess more than one monetary penalty under this chapter for a
9-16     violation arising out of the same act or failure to act.  This
9-17     section does not prohibit the department from assessing a monetary
9-18     penalty under this chapter and a monetary penalty under Chapter 32,
9-19     Human Resources Code, if appropriate, for the same act or failure
9-20     to act.
9-21           Sec. 247.0457.  AMELIORATION OF VIOLATION.  In lieu of
9-22     ordering payment of an administrative penalty authorized by this
9-23     subchapter, the commissioner may require a person subject to the
9-24     penalty to use, under the supervision of the department, all or
9-25     part of the amount of the penalty to ameliorate the violation or to
9-26     improve services, other than administrative services, in the
 10-1    personal care facility affected by the violation.
 10-2          SECTION 3.  This Act takes effect September 1, 1999.
 10-3          SECTION 4.  The importance of this legislation and the
 10-4    crowded condition of the calendars in both houses create an
 10-5    emergency and an imperative public necessity that the
 10-6    constitutional rule requiring bills to be read on three several
 10-7    days in each house be suspended, and this rule is hereby suspended.