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.