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.