By Nelson S.B. No. 1232 76R9030 MCK-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the regulation of birthing centers; providing an 1-3 administrative penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Section 244.006, Health and Safety Code, is 1-6 amended to read as follows: 1-7 Sec. 244.006. INSPECTIONS. (a) The department may inspect a 1-8 birthing center at reasonable times as necessary to assure 1-9 compliance with this chapter. 1-10 (b) If a birthing center is not complying with this chapter, 1-11 the department may appoint a monitor for the center to ensure 1-12 compliance with this chapter. The birthing center shall be liable 1-13 for the cost of the monitor. 1-14 SECTION 2. Section 244.011(a), Health and Safety Code, is 1-15 amended to read as follows: 1-16 (a) The department may deny, suspend, or revoke a license 1-17 for: 1-18 (1) a violation of this chapter or a rule adopted 1-19 under this chapter; or 1-20 (2) a history of noncompliance with this chapter or 1-21 the rules adopted under this chapter. 1-22 SECTION 3. Chapter 244, Health and Safety Code, is amended 1-23 by adding Sections 244.0105, 244.0115, 244.015, 244.016, 244.017, 1-24 244.018, 244.019, and 244.020 to read as follows: 2-1 Sec. 244.0105. COMPLAINTS. A person may file a complaint 2-2 with the department against a birthing center licensed under this 2-3 chapter. The complaint must be accompanied by a sworn affidavit 2-4 stating the facts of the complaint. A person who files a false 2-5 affidavit may be prosecuted under the Penal Code. 2-6 Sec. 244.0115. EMERGENCY SUSPENSION. The department may 2-7 issue an emergency order to suspend a license issued under this 2-8 chapter if the department has reasonable cause to believe that the 2-9 conduct of a license holder creates an immediate danger to the 2-10 public health and safety. On written request of the license 2-11 holder, the department shall conduct a hearing not earlier than the 2-12 7th day or later than the 10th day after the date the notice of the 2-13 emergency suspension is sent to the license holder to determine if 2-14 the emergency suspension is to take effect, to be modified, or to 2-15 be rescinded. The hearing and any appeal are governed by the 2-16 department's rules for a contested case hearing and Chapter 2001, 2-17 Government Code. 2-18 Sec. 244.015. ADMINISTRATIVE PENALTY. (a) The department 2-19 may assess an administrative penalty against a person who violates 2-20 this chapter or a rule adopted under this chapter. 2-21 (b) The penalty may not exceed $1,000 for each violation. 2-22 Each day of a continuing violation constitutes a separate 2-23 violation. 2-24 (c) In determining the amount of an administrative penalty 2-25 assessed under this section, the department shall consider: 2-26 (1) the seriousness of the violation; 2-27 (2) the history of previous violations; 3-1 (3) the amount necessary to deter future violations; 3-2 (4) efforts made to correct the violation; and 3-3 (5) any other matters that justice may require. 3-4 (d) All proceedings for the assessment of an administrative 3-5 penalty under this chapter are considered to be contested cases 3-6 under Chapter 2001, Government Code. 3-7 Sec. 244.016. NOTICE; REQUEST FOR HEARING. (a) If, after 3-8 investigation of a possible violation and the facts surrounding 3-9 that possible violation, the department determines that a violation 3-10 has occurred, the department shall give written notice of the 3-11 violation to the person alleged to have committed the violation. 3-12 The notice shall include: 3-13 (1) a brief summary of the alleged violation; 3-14 (2) a statement of the amount of the proposed penalty 3-15 based on the factors set forth in Section 244.015(c); and 3-16 (3) a statement of the person's right to a hearing on 3-17 the occurrence of the violation, the amount of the penalty, or both 3-18 the occurrence of the violation and the amount of the penalty. 3-19 (b) Not later than the 20th day after the date on which the 3-20 notice is received, the person notified may accept the 3-21 determination of the department made under this section, including 3-22 the proposed penalty, or make a written request for a hearing on 3-23 that determination. 3-24 (c) If the person notified of the violation accepts the 3-25 determination of the department, the commissioner or the 3-26 commissioner's designee shall issue an order approving the 3-27 determination and ordering that the person pay the proposed 4-1 penalty. 4-2 Sec. 244.017. HEARING; ORDER. (a) If the person notified 4-3 fails to respond in a timely manner to the notice under Section 4-4 244.016(b) or if the person requests a hearing, the department 4-5 shall: 4-6 (1) set a hearing; 4-7 (2) give written notice of the hearing to the person; 4-8 and 4-9 (3) designate a hearings examiner to conduct the 4-10 hearing. 4-11 (b) The hearings examiner shall make findings of fact and 4-12 conclusions of law and shall promptly issue to the commissioner or 4-13 the commissioner's designee a proposal for decision as to the 4-14 occurrence of the violation and a recommendation as to the amount 4-15 of the proposed penalty if a penalty is determined to be warranted. 4-16 (c) Based on the findings of fact and conclusions of law and 4-17 the recommendations of the hearings examiner, the commissioner or 4-18 the commissioner's designee by order may find that a violation has 4-19 occurred and may assess a penalty, or may find that no violation 4-20 has occurred. 4-21 Sec. 244.018. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; 4-22 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of 4-23 the order under Section 244.017(c) to the person notified. The 4-24 notice must include: 4-25 (1) separate statements of the findings of fact and 4-26 conclusions of law; 4-27 (2) the amount of any penalty assessed; and 5-1 (3) a statement of the right of the person to judicial 5-2 review of the order. 5-3 (b) Not later than the 30th day after the date on which the 5-4 decision is final as provided by Chapter 2001, Government Code, the 5-5 person shall: 5-6 (1) pay the penalty; 5-7 (2) pay the penalty and file a petition for judicial 5-8 review contesting the occurrence of the violation, the amount of 5-9 the penalty, or both the occurrence of the violation and the amount 5-10 of the penalty; or 5-11 (3) without paying the penalty, file a petition for 5-12 judicial review contesting the occurrence of the violation, the 5-13 amount of the penalty, or both the occurrence of the violation and 5-14 the amount of the penalty. 5-15 (c) Within the 30-day period, a person who acts under 5-16 Subsection (b)(3) may: 5-17 (1) stay enforcement of the penalty by: 5-18 (A) paying the penalty to the court for 5-19 placement in an escrow account; or 5-20 (B) giving to the court a supersedeas bond that 5-21 is approved by the court for the amount of the penalty and that is 5-22 effective until all judicial review of the order is final; or 5-23 (2) request the court to stay enforcement of the 5-24 penalty by: 5-25 (A) filing with the court a sworn affidavit of 5-26 the person stating that the person is financially unable to pay the 5-27 amount of the penalty and is financially unable to give the 6-1 supersedeas bond; and 6-2 (B) giving a copy of the affidavit to the 6-3 department by certified mail. 6-4 (d) If the department receives a copy of an affidavit under 6-5 Subsection (c)(2), the department may file with the court, within 6-6 five days after the date the copy is received, a contest to the 6-7 affidavit. The court shall hold a hearing on the facts alleged in 6-8 the affidavit as soon as practicable and shall stay the enforcement 6-9 of the penalty on finding that the alleged facts are true. The 6-10 person who files an affidavit has the burden of proving that the 6-11 person is financially unable to pay the penalty and to give a 6-12 supersedeas bond. 6-13 (e) If the person does not pay the penalty and the 6-14 enforcement of the penalty is not stayed, the department may refer 6-15 the matter to the attorney general for collection of the penalty. 6-16 (f) Judicial review of the order: 6-17 (1) is instituted by filing a petition as provided by 6-18 Subchapter G, Chapter 2001, Government Code; and 6-19 (2) is under the substantial evidence rule. 6-20 (g) If the court sustains the occurrence of the violation, 6-21 the court may uphold or reduce the amount of the penalty and order 6-22 the person to pay the full or reduced amount of the penalty. If 6-23 the court does not sustain the occurrence of the violation, the 6-24 court shall order that no penalty is owed. 6-25 (h) When the judgment of the court becomes final, the court 6-26 shall proceed under this subsection. If the person paid the amount 6-27 of the penalty under Subsection (b)(2) and if that amount is 7-1 reduced or is not upheld by the court, the court shall order that 7-2 the department pay the appropriate amount plus accrued interest to 7-3 the person. The rate of the interest is the rate charged on loans 7-4 to depository institutions by the New York Federal Reserve Bank, 7-5 and the interest shall be paid for the period beginning on the date 7-6 the penalty was paid and ending on the date the penalty is 7-7 remitted. If the person paid the penalty under Subsection 7-8 (c)(1)(A), or gave a supersedeas bond and if the amount of the 7-9 penalty is not upheld by the court, the court shall order the 7-10 release of the escrow account or bond. If the person paid the 7-11 penalty under Subsection (c)(1)(A) and the amount of the penalty is 7-12 reduced, the court shall order that the amount of the penalty be 7-13 paid to the department from the escrow account and that the 7-14 remainder of the account be released. If the person gave a 7-15 supersedeas bond and if the amount of the penalty is reduced, the 7-16 court shall order the release of the bond after the person pays the 7-17 amount. 7-18 Sec. 244.019. PENALTY DEPOSITED TO STATE TREASURY. A civil 7-19 or administrative penalty collected under this chapter shall be 7-20 deposited in the state treasury to the credit of the general 7-21 revenue fund. 7-22 Sec. 244.020. RECOVERY OF COSTS. (a) The department may 7-23 assess reasonable expenses and costs against a person in an 7-24 administrative hearing if, as a result of the hearing, the person's 7-25 license is denied, suspended, or revoked or if administrative 7-26 penalties are assessed against the person. The person shall pay 7-27 expenses and costs assessed under this subsection not later than 8-1 the 30th day after the date of the order of the commissioner or the 8-2 commissioner's designee requiring the payment of expenses and costs 8-3 is final. The department may refer the matter to the attorney 8-4 general for collection of the expenses and costs. 8-5 (b) If the attorney general brings an action against a 8-6 person under Section 244.012 or 244.014 or to enforce an 8-7 administrative penalty assessed under Section 244.015, and an 8-8 injunction is granted against the person or the person is found 8-9 liable for a civil or administrative penalty, the attorney general 8-10 may recover, on behalf of the attorney general and the department, 8-11 reasonable expenses and costs. 8-12 (c) For purposes of this section, "reasonable expenses and 8-13 costs" include expenses incurred by the department and the attorney 8-14 general in the investigation, initiation, or prosecution of an 8-15 action, including reasonable investigative costs, court costs, 8-16 attorney's fees, witness fees, and deposition expenses. 8-17 (d) Costs and expenses collected under this section shall be 8-18 deposited in the general revenue fund to the credit of the birthing 8-19 center penalty account. Money in the account may be appropriated 8-20 only to the department to administer this chapter. Section 8-21 403.095, Government Code, does not apply to the account. 8-22 SECTION 4. This Act takes effect September 1, 1999. 8-23 SECTION 5. The importance of this legislation and the 8-24 crowded condition of the calendars in both houses create an 8-25 emergency and an imperative public necessity that the 8-26 constitutional rule requiring bills to be read on three several 8-27 days in each house be suspended, and this rule is hereby suspended.