By Moncrief S.B. No. 200 76R3013 KKA-D 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 247.0451-247.0457 to read as 1-11 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: 1-24 (A) a book, record, or file required to be 2-1 maintained by a personal care facility; or 2-2 (B) any portion of the premises of a personal 2-3 care facility; 2-4 (4) wilfully interferes with the work of a 2-5 representative of the department or the enforcement of this 2-6 chapter; 2-7 (5) wilfully interferes with a representative of the 2-8 department preserving evidence of a violation of this chapter or a 2-9 rule, standard, or order adopted or license issued under this 2-10 chapter; or 2-11 (6) fails to pay a penalty assessed under this chapter 2-12 not later than the 10th day after the date the assessment of the 2-13 penalty becomes final. 2-14 (b) Except as provided by Subsection (c) and Section 2-15 247.0452(c), the penalty may not exceed $10,000 a day for each 2-16 violation. 2-17 (c) The penalty for a violation of a right of a resident 2-18 under Section 247.065 may not exceed $1,000 a day for each 2-19 violation. This subsection does not apply to conduct that also 2-20 violates another provision in this chapter or a rule, standard, or 2-21 order adopted or license issued under this chapter. 2-22 (d) Each day of a continuing violation constitutes a 2-23 separate violation. 2-24 (e) The board shall establish gradations of penalties in 2-25 accordance with the relative seriousness of the violation. 2-26 (f) In determining the amount of a penalty, the department 2-27 shall consider any matter that justice may require, including: 3-1 (1) the gradations of penalties established under 3-2 Subsection (e); 3-3 (2) the seriousness of the violation, including the 3-4 nature, circumstances, extent, and gravity of the prohibited act 3-5 and the hazard or potential hazard created by the act to the health 3-6 or safety of the public; 3-7 (3) the history of previous violations; 3-8 (4) deterrence of future violations; and 3-9 (5) efforts to correct the violation. 3-10 (g) A penalty assessed under Subsection (a)(6) is in 3-11 addition to the penalty previously assessed and not timely paid. 3-12 Sec. 247.0452. RIGHT TO CORRECT. (a) The department may 3-13 not collect an administrative penalty from a personal care facility 3-14 under Section 247.0451 if, not later than the 45th day after the 3-15 date the facility receives notice under Section 247.0453(c), the 3-16 facility corrects the violation. 3-17 (b) Subsection (a) does not apply: 3-18 (1) to a violation that the department determines: 3-19 (A) results in serious harm to or death of a 3-20 resident; 3-21 (B) constitutes a serious threat to the health 3-22 or safety of a resident; or 3-23 (C) substantially limits the personal care 3-24 facility's capacity to provide care; 3-25 (2) to a violation described by Sections 3-26 247.0451(a)(2)-(6); or 3-27 (3) to a violation of a right of a resident under 4-1 Section 247.065. 4-2 (c) A personal care facility that corrects a violation must 4-3 maintain the correction. If the facility fails to maintain the 4-4 correction until at least the first anniversary of the date the 4-5 correction was made, the department may assess and collect an 4-6 administrative penalty for the subsequent violation. An 4-7 administrative penalty assessed under this subsection is equal to 4-8 three times the amount of the original penalty assessed but not 4-9 collected. The department is not required to provide the facility 4-10 with an opportunity under this section to correct the subsequent 4-11 violation. 4-12 Sec. 247.0453. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. 4-13 (a) The department may issue a preliminary report stating the 4-14 facts on which the department concludes that a violation of this 4-15 chapter or a rule, standard, or order adopted or license issued 4-16 under this chapter has occurred if the department has: 4-17 (1) examined the possible violation and facts 4-18 surrounding the possible violation; and 4-19 (2) concluded that a violation has occurred. 4-20 (b) The report may recommend a penalty under Section 4-21 247.0451 and the amount of the penalty. 4-22 (c) The department shall give written notice of the report 4-23 to the person charged with the violation not later than the 10th 4-24 day after the date on which the report is issued. The notice must 4-25 include: 4-26 (1) a brief summary of the charges; 4-27 (2) a statement of the amount of penalty recommended; 5-1 (3) a statement of whether the violation is subject to 5-2 correction under Section 247.0452 and, if the violation is subject 5-3 to correction under that section, a statement of: 5-4 (A) the date on which the personal care facility 5-5 must file with the department a plan of correction to be approved 5-6 by the department; and 5-7 (B) the date on which the plan of correction 5-8 must be completed to avoid assessment of the penalty; and 5-9 (4) a statement that the person charged has a right to 5-10 a hearing on the occurrence of the violation, the amount of the 5-11 penalty, or both. 5-12 (d) Not later than the 20th day after the date on which the 5-13 notice under Subsection (c) is sent, the person charged may: 5-14 (1) give to the department written consent to the 5-15 department's report, including the recommended penalty; 5-16 (2) make a written request for a hearing; or 5-17 (3) if the violation is subject to correction under 5-18 Section 247.0452, submit a plan of correction to the department for 5-19 approval. 5-20 (e) If the violation is subject to correction under Section 5-21 247.0452, and the person reports to the department that the 5-22 violation has been corrected, the department shall inspect the 5-23 correction or take any other step necessary to confirm the 5-24 correction and shall notify the person that: 5-25 (1) the correction is satisfactory and a penalty will 5-26 not be assessed; or 5-27 (2) the correction is not satisfactory and a penalty 6-1 is recommended. 6-2 (f) Not later than the 20th day after the date on which a 6-3 notice under Subsection (e)(2) is sent, the person charged may: 6-4 (1) give to the department written consent to the 6-5 department's report, including the recommended penalty; or 6-6 (2) make a written request for a hearing. 6-7 (g) If the person charged with the violation consents to the 6-8 penalty recommended by the department or does not timely respond to 6-9 a notice sent under Subsection (c) or (e)(2), the commissioner or 6-10 the commissioner's designee shall assess the penalty recommended by 6-11 the department. 6-12 (h) If the commissioner or the commissioner's designee 6-13 assesses the recommended penalty, the department shall give written 6-14 notice to the person charged of the decision and the person shall 6-15 pay the penalty. 6-16 Sec. 247.0454. HEARING ON ADMINISTRATIVE PENALTY. (a) An 6-17 administrative law judge shall order a hearing and give notice of 6-18 the hearing if a person charged with a violation under Section 6-19 247.0451 timely requests a hearing. 6-20 (b) The hearing shall be held before an administrative law 6-21 judge. 6-22 (c) The administrative law judge shall make findings of fact 6-23 and conclusions of law and promptly issue to the commissioner a 6-24 written decision regarding the occurrence of a violation of this 6-25 chapter or a rule, standard, or order adopted or license issued 6-26 under this chapter and a recommendation regarding the amount of the 6-27 proposed penalty if a penalty is warranted. 7-1 (d) Based on the findings of fact and conclusions of law and 7-2 the recommendation of the administrative law judge, the 7-3 commissioner by order may: 7-4 (1) find that a violation has occurred and assess an 7-5 administrative penalty; or 7-6 (2) find that a violation has not occurred. 7-7 (e) Proceedings under this section are subject to Chapter 7-8 2001, Government Code. 7-9 Sec. 247.0455. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; 7-10 INTEREST; REFUND. (a) The commissioner shall give notice of the 7-11 findings made under Section 247.0454(d) to the person charged. If 7-12 the commissioner finds that a violation has occurred, the 7-13 commissioner shall give to the person charged written notice of: 7-14 (1) the findings; 7-15 (2) the amount of the administrative penalty; 7-16 (3) the rate of interest payable with respect to the 7-17 penalty and the date on which interest begins to accrue; 7-18 (4) whether action under Section 247.0457 is required 7-19 in lieu of payment of all or part of the penalty; and 7-20 (5) the person's right to judicial review of the 7-21 commissioner's order. 7-22 (b) Not later than the 30th day after the date on which the 7-23 commissioner's order is final, the person charged with the penalty 7-24 shall: 7-25 (1) pay the full amount of the penalty; or 7-26 (2) file a petition for judicial review contesting the 7-27 occurrence of the violation, the amount of the penalty, the failure 8-1 to correct the violation to the department's satisfaction, or any 8-2 combination of these issues. 8-3 (c) Notwithstanding Subsection (b), the department may 8-4 permit the person to pay a penalty in installments or may require 8-5 the person to use all or part of the amount of the penalty in 8-6 accordance with Section 247.0457. 8-7 (d) If the person does not pay the penalty within the period 8-8 provided by Subsection (b) or in accordance with Subsection (c), if 8-9 applicable: 8-10 (1) the penalty is subject to interest; and 8-11 (2) the department may refer the matter to the 8-12 attorney general for collection of the penalty and interest. 8-13 (e) Interest under Subsection (d)(1) accrues: 8-14 (1) at a rate equal to the rate charged on loans to 8-15 depository institutions by the New York Federal Reserve Bank; and 8-16 (2) for the period beginning on the date after the 8-17 date on which the penalty becomes due and ending on the date the 8-18 penalty is paid. 8-19 (f) If a penalty is reduced or not assessed as a result of 8-20 judicial review, the commissioner shall: 8-21 (1) remit to the person charged the appropriate amount 8-22 of any penalty payment plus accrued interest; or 8-23 (2) execute a release of the supersedeas bond if one 8-24 has been posted. 8-25 (g) Accrued interest on amounts remitted by the commissioner 8-26 under Subsection (f)(1) shall be paid: 8-27 (1) at a rate equal to the rate charged on loans to 9-1 depository institutions by the New York Federal Reserve Bank; and 9-2 (2) for the period beginning on the date the penalty 9-3 is paid and ending on the date the penalty is remitted to the 9-4 person charged. 9-5 Sec. 247.0456. APPLICATION OF OTHER LAW. Except as provided 9-6 by Section 247.0451(a)(6) or 247.0452(c), the department may not 9-7 assess more than one monetary penalty under this chapter for a 9-8 violation arising out of the same act or failure to act. This 9-9 section does not prohibit the department from assessing a monetary 9-10 penalty under this chapter and a monetary penalty under Chapter 32, 9-11 Human Resources Code, if appropriate, for the same act or failure 9-12 to act. 9-13 Sec. 247.0457. AMELIORATION OF VIOLATION. In lieu of 9-14 ordering payment of an administrative penalty authorized by this 9-15 subchapter, the commissioner may require a person subject to the 9-16 penalty to use, under the supervision of the department, all or 9-17 part of the amount of the penalty to ameliorate the violation or to 9-18 improve services, other than administrative services, in the 9-19 personal care facility affected by the violation. 9-20 SECTION 3. This Act takes effect September 1, 1999. 9-21 SECTION 4. The importance of this legislation and the 9-22 crowded condition of the calendars in both houses create an 9-23 emergency and an imperative public necessity that the 9-24 constitutional rule requiring bills to be read on three several 9-25 days in each house be suspended, and this rule is hereby suspended.