76R16036 KKA-F                          
         By Moncrief, et al.                                    S.B. No. 200
         Substitute the following for S.B. No. 200:
         By Naishtat                                        C.S.S.B. No. 200
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to imposition of administrative penalties against personal
 1-3     care facilities.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 247.002, Health and Safety Code, is
 1-6     amended by adding Subdivision (6) to read as follows:
 1-7                 (6)  "Commissioner" means the commissioner of human
 1-8     services.
 1-9           SECTION 2.  Subchapter C, Chapter 247, Health and Safety
1-10     Code, is amended by adding Sections 247.0451 through 247.0457 to
1-11     read as follows:
1-12           Sec. 247.0451.  ADMINISTRATIVE PENALTY.  (a)  The department
1-13     may assess an administrative penalty against a person who:
1-14                 (1)  violates this chapter or a rule, standard, or
1-15     order adopted or license issued under this chapter;
1-16                 (2)  makes a false statement, that the person knows or
1-17     should know is false, of a material fact:
1-18                       (A)  on an application for issuance or renewal of
1-19     a license or in an attachment to the application; or
1-20                       (B)  with respect to a matter under investigation
1-21     by the department;
1-22                 (3)  refuses to allow a representative of the
1-23     department to inspect:
 2-1                       (A)  a book, record, or file required to be
 2-2     maintained by a personal care facility; or
 2-3                       (B)  any portion of the premises of a personal
 2-4     care facility;
 2-5                 (4)  wilfully interferes with the work of a
 2-6     representative of the department or the enforcement of this
 2-7     chapter;
 2-8                 (5)  wilfully interferes with a representative of the
 2-9     department preserving evidence of a violation of this chapter or a
2-10     rule, standard, or order adopted or license issued under this
2-11     chapter; or
2-12                 (6)  fails to pay a penalty assessed under this chapter
2-13     not later than the 30th day after the date the assessment of the
2-14     penalty becomes final.
2-15           (b)  Except as provided by Subsection (d), the penalty may
2-16     not exceed $5,000 for each violation.
2-17           (c)  Notice of any violation observed by a representative of
2-18     the department during an inspection that results in a
2-19     recommendation of an administrative penalty shall be provided in
2-20     writing to the personal care facility.  The written notice must
2-21     identify the specific law or regulation that has been violated and
2-22     include the name of the department representative recommending the
2-23     penalty.
2-24           (d)  The penalty for a violation of a right of a resident
2-25     under Section 247.065 may not exceed $1,000 for each violation.
2-26     This subsection does not apply to conduct that also violates
2-27     another provision in this chapter or a rule, standard, or order
 3-1     adopted or license issued under this chapter.
 3-2           (e)  The board shall establish gradations of penalties in
 3-3     accordance with the relative seriousness of the violation.
 3-4           (f)  In determining the amount of a penalty, the department
 3-5     shall consider any matter that justice may require, including:
 3-6                 (1)  the size of the personal care facility;
 3-7                 (2)  the gradations of penalties established under
 3-8     Subsection (e);
 3-9                 (3)  the seriousness of the violation, including the
3-10     nature, circumstances, extent, and gravity of the prohibited act
3-11     and the hazard or potential hazard created by the act to the health
3-12     or safety of the public;
3-13                 (4)  the history of previous violations;
3-14                 (5)  deterrence of future violations; and
3-15                 (6)  efforts to correct the violation.
3-16           (g)  A penalty assessed under Subsection (a)(6) is in
3-17     addition to the penalty previously assessed and not timely paid.
3-18           Sec. 247.0452.  RIGHT TO CORRECT.  (a)  The department may
3-19     not collect an administrative penalty from a personal care facility
3-20     under Section 247.0451 if, not later than the 45th day after the
3-21     date the facility receives notice under Section 247.0453(c), the
3-22     facility corrects the violation.
3-23           (b)  Subsection (a)  does not apply:
3-24                 (1)  to a violation that the department determines:
3-25                       (A)  results in serious harm to or death of a
3-26     resident;
3-27                       (B)  constitutes a serious threat to the health
 4-1     or safety of a resident; or
 4-2                       (C)  substantially limits the personal care
 4-3     facility's capacity to provide care;
 4-4                 (2)  to a violation described by Sections
 4-5     247.0451(a)(2)-(6); or
 4-6                 (3)  to a violation of a right of a resident under
 4-7     Section 247.065.
 4-8           Sec. 247.0453.  REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
 4-9     (a)  The department may issue a preliminary report stating the
4-10     facts on which the department concludes that a violation of this
4-11     chapter or a rule, standard, or order adopted or license issued
4-12     under this chapter has occurred if the department has:
4-13                 (1)  examined the possible violation and facts
4-14     surrounding the possible violation; and
4-15                 (2)  concluded that a violation has occurred.
4-16           (b)  The report may recommend a penalty under Section
4-17     247.0451 and the amount of the penalty.
4-18           (c)  The department shall give written notice of the report
4-19     to the person charged with the violation not later than the 10th
4-20     day after the date on which the report is issued.  The notice must
4-21     include:
4-22                 (1)  a brief summary of the charges;
4-23                 (2)  a statement of the amount of penalty recommended;
4-24                 (3)  a statement of whether the violation is subject to
4-25     correction under Section 247.0452 and, if the violation is subject
4-26     to correction under that section, a statement of:
4-27                       (A)  the date on which the personal care facility
 5-1     must file with the department a plan of correction to be approved
 5-2     by the department; and
 5-3                       (B)  the date on which the plan of correction
 5-4     must be completed to avoid assessment of the penalty; and
 5-5                 (4)  a statement that the person charged has a right to
 5-6     a hearing on the occurrence of the violation, the amount of the
 5-7     penalty, or both.
 5-8           (d)  Not later than the 20th day after the date on which the
 5-9     notice under Subsection (c) is sent, the person charged may:
5-10                 (1)  give to the department written consent to the
5-11     department's report, including the recommended penalty;
5-12                 (2)  make a written request for a hearing; or
5-13                 (3)  if the violation is subject to correction under
5-14     Section 247.0452, submit a plan of correction to the department for
5-15     approval.
5-16           (e)  If the violation is subject to correction under Section
5-17     247.0452, and the person reports to the department that the
5-18     violation has been corrected, the department shall inspect the
5-19     correction or take any other step necessary to confirm the
5-20     correction and shall notify the person that:
5-21                 (1)  the correction is satisfactory and a penalty will
5-22     not be assessed; or
5-23                 (2)  the correction is not satisfactory and a penalty
5-24     is recommended.
5-25           (f)  Not later than the 20th day after the date on which a
5-26     notice under Subsection (e)(2) is sent, the person charged may:
5-27                 (1)  give to the department written consent to the
 6-1     department's report, including the recommended penalty; or
 6-2                 (2)  make a written request for a hearing.
 6-3           (g)  If the person charged with the violation consents to the
 6-4     penalty recommended by the department or does not timely respond to
 6-5     a notice sent under Subsection (c) or (e)(2), the commissioner or
 6-6     the commissioner's designee shall assess the penalty recommended by
 6-7     the department.
 6-8           (h)  If the commissioner or the commissioner's designee
 6-9     assesses the recommended penalty, the department shall give written
6-10     notice to the person charged of the decision and the person shall
6-11     pay the penalty.
6-12           Sec. 247.0454.  HEARING ON ADMINISTRATIVE PENALTY.  (a)  An
6-13     administrative law judge shall order a hearing and give notice of
6-14     the hearing if a person charged with a violation under Section
6-15     247.0451 timely requests a hearing.
6-16           (b)  The hearing shall be held before an administrative law
6-17     judge.
6-18           (c)  The administrative law judge shall make findings of fact
6-19     and conclusions of law and promptly issue to the commissioner a
6-20     written decision regarding the occurrence of a violation of this
6-21     chapter or a rule, standard, or order adopted or license issued
6-22     under this chapter and a recommendation regarding the amount of the
6-23     proposed penalty if a penalty is warranted.
6-24           (d)  Based on the findings of fact and conclusions of law and
6-25     the recommendation of the administrative law judge, the
6-26     commissioner by order may:
6-27                 (1)  find that a violation has occurred and assess an
 7-1     administrative penalty; or
 7-2                 (2)  find that a violation has not occurred.
 7-3           (e)  Proceedings under this section are subject to Chapter
 7-4     2001, Government Code.
 7-5           Sec. 247.0455.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
 7-6     INTEREST; REFUND.  (a)  The commissioner shall give notice of the
 7-7     findings made under Section 247.0454(d) to the person charged.  If
 7-8     the commissioner finds that a violation has occurred, the
 7-9     commissioner shall give to the person charged written notice of:
7-10                 (1)  the findings;
7-11                 (2)  the amount of the administrative penalty;
7-12                 (3)  the rate of interest payable with respect to the
7-13     penalty and the date on which interest begins to accrue;
7-14                 (4)  whether action under Section 247.0457 is required
7-15     in lieu of payment of all or part of the penalty; and
7-16                 (5)  the person's right to judicial review of the
7-17     commissioner's order.
7-18           (b)  Not later than the 30th day after the date on which the
7-19     commissioner's order is final, the person charged with the penalty
7-20     shall:
7-21                 (1)  pay the full amount of the penalty; or
7-22                 (2)  file a petition for judicial review contesting the
7-23     occurrence of the violation, the amount of the penalty, the failure
7-24     to correct the violation to the department's satisfaction, or any
7-25     combination of these issues.
7-26           (c)  Notwithstanding Subsection (b), the department may
7-27     permit the person to pay a penalty in installments or may require
 8-1     the person to use all or part of the amount of the penalty in
 8-2     accordance with Section 247.0457.
 8-3           (d)  If the person does not pay the penalty within the period
 8-4     provided by Subsection (b) or in accordance with Subsection (c), if
 8-5     applicable:
 8-6                 (1)  the penalty is subject to interest; and
 8-7                 (2)  the department may refer the matter to the
 8-8     attorney general for collection of the penalty and interest.
 8-9           (e)  Interest under Subsection (d)(1) accrues:
8-10                 (1)  at a rate equal to the rate charged on loans to
8-11     depository institutions by the New York Federal Reserve Bank; and
8-12                 (2)  for the period beginning on the date after the
8-13     date on which the penalty becomes due and ending on the date the
8-14     penalty is paid.
8-15           (f)  If a penalty is reduced or not assessed as a result of
8-16     judicial review, the commissioner shall:
8-17                 (1)  remit to the person charged the appropriate amount
8-18     of any penalty payment plus accrued interest; or
8-19                 (2)  execute a release of the supersedeas bond if one
8-20     has been posted.
8-21           (g)  Accrued interest on amounts remitted by the commissioner
8-22     under Subsection (f)(1) shall be paid:
8-23                 (1)  at a rate equal to the rate charged on loans to
8-24     depository institutions by the New York Federal Reserve Bank; and
8-25                 (2)  for the period beginning on the date the penalty
8-26     is paid and ending on the date the penalty is remitted to the
8-27     person charged.
 9-1           Sec. 247.0456.  APPLICATION OF OTHER LAW.  Except as provided
 9-2     by Section 247.0451(a)(6), the department may not assess more than
 9-3     one monetary penalty under this chapter for a violation arising out
 9-4     of the same act or failure to act.
 9-5           Sec. 247.0457.  AMELIORATION OF VIOLATION.  In lieu of
 9-6     ordering payment of an administrative penalty authorized by this
 9-7     subchapter, the commissioner may require a person subject to the
 9-8     penalty to use, under the supervision of the department, all or
 9-9     part of the amount of the penalty to ameliorate the violation or to
9-10     improve services, other than administrative services, in the
9-11     personal care facility affected by the violation.
9-12           SECTION 3.  This Act takes effect September 1, 1999.
9-13           SECTION 4.  The importance of this legislation and the
9-14     crowded condition of the calendars in both houses create an
9-15     emergency and an imperative public necessity that the
9-16     constitutional rule requiring bills to be read on three several
9-17     days in each house be suspended, and this rule is hereby suspended.