1-1     By:  Nelson                                           S.B. No. 1232
 1-2           (In the Senate - Filed March 11, 1999; March 11, 1999, read
 1-3     first time and referred to Committee on Health Services;
 1-4     March 29, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 4, Nays 0; March 29, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1232                  By:  Nelson
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the regulation of birthing centers; providing an
1-11     administrative penalty.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Section 244.006, Health and Safety Code, is
1-14     amended to read as follows:
1-15           Sec. 244.006.  INSPECTIONS.  (a)  The department may inspect
1-16     a birthing center at reasonable times as necessary to assure
1-17     compliance with this chapter.
1-18           (b)  If a birthing center's failure to comply with this
1-19     chapter creates a serious threat to the health and safety of the
1-20     public, the department may appoint a monitor for the center to
1-21     ensure compliance with this chapter.  The birthing center shall be
1-22     liable for the cost of the monitor.
1-23           SECTION 2.  Subsection (a), Section 244.011, Health and
1-24     Safety Code, is amended to read as follows:
1-25           (a)  The department may deny, suspend, or revoke a license
1-26     for:
1-27                 (1)  a violation of this chapter or a rule adopted
1-28     under this chapter; or
1-29                 (2)  a history of continuing noncompliance with this
1-30     chapter or the rules adopted under this chapter.
1-31           SECTION 3.  Chapter 244, Health and Safety Code, is amended
1-32     by adding Sections 244.0105, 244.0115, 244.015, 244.016, 244.017,
1-33     244.018, 244.019, and 244.020 to read as follows:
1-34           Sec. 244.0105.  COMPLAINTS.  A person may file a complaint
1-35     with the department against a birthing center licensed under this
1-36     chapter.  A person who files a false complaint may be prosecuted
1-37     under the Penal Code.
1-38           Sec. 244.0115.  EMERGENCY SUSPENSION.  The department may
1-39     issue an emergency order to suspend a license issued under this
1-40     chapter if the department has reasonable cause to believe that the
1-41     conduct of a license holder creates an immediate danger to the
1-42     public health and safety.  On written request of the license
1-43     holder, the department shall conduct a hearing not earlier than the
1-44     seventh day or later than the 10th day after the date the notice of
1-45     the emergency suspension is sent to the license holder to determine
1-46     if the emergency suspension is to take effect, to be modified, or
1-47     to be rescinded.  The hearing and any appeal are governed by the
1-48     department's rules for a contested case hearing and Chapter 2001,
1-49     Government Code.
1-50           Sec. 244.015.  ADMINISTRATIVE PENALTY.  (a)  The department
1-51     may assess an administrative penalty against a person who violates
1-52     this chapter or a rule adopted under this chapter.
1-53           (b)  The penalty may not exceed $1,000 for each violation.
1-54           (c)  In determining the amount of an administrative penalty
1-55     assessed under this section, the department shall consider:
1-56                 (1)  the seriousness of the violation;
1-57                 (2)  the history of previous violations;
1-58                 (3)  the amount necessary to deter future violations;
1-59                 (4)  efforts made to correct the violation; and
1-60                 (5)  any other matters that justice may require.
1-61           (d)  All proceedings for the assessment of an administrative
1-62     penalty under this chapter are considered to be contested cases
1-63     under Chapter 2001, Government Code.
1-64           Sec. 244.016.  NOTICE; REQUEST FOR HEARING.  (a)  If, after
 2-1     investigation of a possible violation and the facts surrounding
 2-2     that possible violation, the department determines that a violation
 2-3     has occurred, the department shall give written notice of the
 2-4     violation to the person alleged to have committed the violation.
 2-5     The notice shall include:
 2-6                 (1)  a brief summary of the alleged violation;
 2-7                 (2)  a statement of the amount of the proposed penalty
 2-8     based on the factors set forth in Section 244.015(c); and
 2-9                 (3)  a statement of the person's right to a hearing on
2-10     the occurrence of the violation, the amount of the penalty, or both
2-11     the occurrence of the violation and the amount of the penalty.
2-12           (b)  Not later than the 20th day after the date on which the
2-13     notice is received, the person notified may accept the
2-14     determination of the department made under this section, including
2-15     the proposed penalty, or make a written request for a hearing on
2-16     that determination.
2-17           (c)  If the person notified of the violation accepts the
2-18     determination of the department, the commissioner or the
2-19     commissioner's designee shall issue an order approving the
2-20     determination and ordering that the person pay the proposed
2-21     penalty.
2-22           Sec. 244.017.  HEARING; ORDER.  (a)  If the person notified
2-23     fails to respond in a timely manner to the notice under Section
2-24     244.016(b) or if the person requests a hearing, the department
2-25     shall:
2-26                 (1)  set a hearing;
2-27                 (2)  give written notice of the hearing to the person;
2-28     and
2-29                 (3)  designate a hearings examiner to conduct the
2-30     hearing.
2-31           (b)  The hearings examiner shall make findings of fact and
2-32     conclusions of law and shall promptly issue to the commissioner or
2-33     the commissioner's designee a proposal for decision as to the
2-34     occurrence of the violation and a recommendation as to the amount
2-35     of the proposed penalty if a penalty is determined to be warranted.
2-36           (c)  Based on the findings of fact and conclusions of law and
2-37     the recommendations of the hearings examiner, the commissioner or
2-38     the commissioner's designee by order may find that a violation has
2-39     occurred and may assess a penalty or may find that no violation has
2-40     occurred.
2-41           Sec. 244.018.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
2-42     JUDICIAL REVIEW; REFUND.  (a)  The department shall give notice of
2-43     the order under Section 244.017(c) to the person notified.  The
2-44     notice must include:
2-45                 (1)  separate statements of the findings of fact and
2-46     conclusions of law;
2-47                 (2)  the amount of any penalty assessed; and
2-48                 (3)  a statement of the right of the person to judicial
2-49     review of the order.
2-50           (b)  Not later than the 30th day after the date on which the
2-51     decision is final as provided by Chapter 2001, Government Code, the
2-52     person shall:
2-53                 (1)  pay the penalty;
2-54                 (2)  pay the penalty and file a petition for judicial
2-55     review contesting the occurrence of the violation, the amount of
2-56     the penalty, or both the occurrence of the violation and the amount
2-57     of the penalty; or
2-58                 (3)  without paying the penalty, file a petition for
2-59     judicial review contesting the occurrence of the violation, the
2-60     amount of the penalty, or both the occurrence of the violation and
2-61     the amount of the penalty.
2-62           (c)  Within the 30-day period, a person who acts under
2-63     Subsection (b)(3) may:
2-64                 (1)  stay enforcement of the penalty by:
2-65                       (A)  paying the penalty to the court for
2-66     placement in an escrow account; or
2-67                       (B)  giving to the court a supersedeas bond that
2-68     is approved by the court for the amount of the penalty and that is
2-69     effective until all judicial review of the order is final; or
 3-1                 (2)  request the court to stay enforcement of the
 3-2     penalty by:
 3-3                       (A)  filing with the court a sworn affidavit of
 3-4     the person stating that the person is financially unable to pay the
 3-5     amount of the penalty and is financially unable to give the
 3-6     supersedeas bond; and
 3-7                       (B)  giving a copy of the affidavit to the
 3-8     department by certified mail.
 3-9           (d)  If the department receives a copy of an affidavit under
3-10     Subsection (c)(2), the department may file with the court, within
3-11     five days after the date the copy is received, a contest to the
3-12     affidavit.  The court shall hold a hearing on the facts alleged in
3-13     the affidavit as soon as practicable and shall stay the enforcement
3-14     of the penalty on finding that the alleged facts are true.  The
3-15     person who files an affidavit has the burden of proving that the
3-16     person is financially unable to pay the penalty and to give a
3-17     supersedeas bond.
3-18           (e)  If the person does not pay the penalty and the
3-19     enforcement of the penalty is not stayed, the department may refer
3-20     the matter to the attorney general for collection of the penalty.
3-21           (f)  Judicial review of the order:
3-22                 (1)  is instituted by filing a petition as provided by
3-23     Subchapter G, Chapter 2001, Government Code; and
3-24                 (2)  is under the substantial evidence rule.
3-25           (g)  If the court sustains the occurrence of the violation,
3-26     the court may uphold or reduce the amount of the penalty and order
3-27     the person to pay the full or reduced amount of the penalty.  If
3-28     the court does not sustain the occurrence of the violation, the
3-29     court shall order that no penalty is owed.
3-30           (h)  When the judgment of the court becomes final, the court
3-31     shall proceed under this subsection.  If the person paid the amount
3-32     of the penalty under Subsection (b)(2) and if that amount is
3-33     reduced or is not upheld by the court, the court shall order that
3-34     the department pay the appropriate amount plus accrued interest to
3-35     the person.  The rate of the interest is the rate charged on loans
3-36     to depository institutions by the New York Federal Reserve Bank,
3-37     and the interest shall be paid for the period beginning on the date
3-38     the penalty was paid and ending on the date the penalty is
3-39     remitted.  If the person paid the penalty under Subsection
3-40     (c)(1)(A) or gave a supersedeas bond and if the amount of the
3-41     penalty is not upheld by the court, the court shall order the
3-42     release of the escrow account or bond.  If the person paid the
3-43     penalty under Subsection (c)(1)(A) and the amount of the penalty is
3-44     reduced, the court shall order that the amount of the penalty be
3-45     paid to the department from the escrow account and that the
3-46     remainder of the account be released.  If the person gave a
3-47     supersedeas bond and if the amount of the penalty is reduced, the
3-48     court shall order the release of the bond after the person pays the
3-49     amount.
3-50           Sec. 244.019.  PENALTY DEPOSITED TO STATE TREASURY.  A civil
3-51     or administrative penalty collected under this chapter shall be
3-52     deposited in the state treasury to the credit of the general
3-53     revenue fund.
3-54           Sec. 244.020.  RECOVERY OF COSTS.  (a)  The department may
3-55     assess reasonable expenses and costs against a person in an
3-56     administrative hearing if, as a result of the hearing, the person's
3-57     license is denied, suspended, or revoked or if administrative
3-58     penalties are assessed against the person.  The person shall pay
3-59     expenses and costs assessed under this subsection not later than
3-60     the 30th day after the date of the order of the commissioner or the
3-61     commissioner's designee requiring the payment of expenses and costs
3-62     is final.  The department may refer the matter to the attorney
3-63     general for collection of the expenses and costs.
3-64           (b)  If the attorney general brings an action against a
3-65     person under Section 244.012 or 244.014 or to enforce an
3-66     administrative penalty assessed under Section 244.015, and an
3-67     injunction is granted against the person or the person is found
3-68     liable for a civil or administrative penalty, the attorney general
3-69     may recover, on behalf of the attorney general and the department,
 4-1     reasonable expenses and costs.
 4-2           (c)  For purposes of this section, "reasonable expenses and
 4-3     costs" include expenses incurred by the department and the attorney
 4-4     general in the investigation, initiation, or prosecution of an
 4-5     action, including reasonable investigative costs, court costs,
 4-6     attorney's fees, witness fees, and deposition expenses.
 4-7           (d)  Costs and expenses collected under this section shall be
 4-8     deposited in the general revenue fund to the credit of the birthing
 4-9     center penalty account.   Money in the account may be appropriated
4-10     only to the department to administer this chapter.  Section
4-11     403.095, Government Code, does not apply to the account.
4-12           SECTION 4.  This Act takes effect September 1, 1999.
4-13           SECTION 5.  The importance of this legislation and the
4-14     crowded condition of the calendars in both houses create an
4-15     emergency and an imperative public necessity that the
4-16     constitutional rule requiring bills to be read on three several
4-17     days in each house be suspended, and this rule is hereby suspended.
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