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.