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2-15 be rescinded.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.