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. 4-18 * * * * *