By Nelson S.B. No. 1249
76R2929 MCK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of ambulatory surgical centers;
1-3 providing a penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 243.006(b), Health and Safety Code, is
1-6 amended to read as follows:
1-7 (b) An ambulatory surgical center licensed by the department
1-8 and certified under Title XVIII of the Social Security Act (42
1-9 U.S.C. Section 1395 et seq.) is [not] subject to an on-site
1-10 [additional] licensing inspection [inspections] under this chapter
1-11 once every three years while the center maintains the
1-12 certification.
1-13 SECTION 2. Chapter 243, Health and Safety Code, is amended
1-14 by adding Sections 243.0115, 243.015, 243.016, 243.017, 243.018,
1-15 243.019, and 243.020 to read as follows:
1-16 Sec. 243.0115. EMERGENCY SUSPENSION. The department may
1-17 issue an emergency order to suspend a license issued under this
1-18 chapter if the department has reasonable cause to believe that the
1-19 conduct of a license holder creates an immediate danger to the
1-20 public health and safety. An emergency suspension is effective
1-21 immediately without a hearing on notice to the license holder. On
1-22 written request of the license holder, the department shall conduct
1-23 a hearing not earlier than the 10th day or later than the 30th day
1-24 after the date the hearing request is received to determine if the
2-1 emergency suspension is to be continued, modified, or rescinded.
2-2 The hearing and any appeal are governed by the department's rules
2-3 for a contested case hearing and Chapter 2001, Government Code.
2-4 Sec. 243.015. ADMINISTRATIVE PENALTY. (a) The department
2-5 may assess an administrative penalty against a person who violates
2-6 this chapter or a rule adopted under this chapter.
2-7 (b) The penalty may not exceed $1,000 for each violation.
2-8 Each day of a continuing violation constitutes a separate
2-9 violation.
2-10 (c) In determining the amount of an administrative penalty
2-11 assessed under this section, the department shall consider:
2-12 (1) the seriousness of the violation;
2-13 (2) the history of previous violations;
2-14 (3) the amount necessary to deter future violations;
2-15 (4) efforts made to correct the violation; and
2-16 (5) any other matter that justice may require.
2-17 (d) All proceedings for the assessment of an administrative
2-18 penalty under this chapter are considered to be contested cases
2-19 under Chapter 2001, Government Code.
2-20 Sec. 243.016. NOTICE; REQUEST FOR HEARING. (a) If, after
2-21 investigation of a possible violation and the facts surrounding
2-22 that possible violation, the department determines that a violation
2-23 has occurred, the department shall give written notice of the
2-24 violation to the person alleged to have committed the violation.
2-25 The notice shall include:
2-26 (1) a brief summary of the alleged violation;
2-27 (2) a statement of the amount of the proposed penalty
3-1 based on the factors set forth in Section 243.015(c); and
3-2 (3) a statement of the person's right to a hearing on
3-3 the occurrence of the violation, the amount of the penalty, or both
3-4 the occurrence of the violation and the amount of the penalty.
3-5 (b) Not later than the 20th day after the date on which the
3-6 notice is received, the person notified may accept the
3-7 determination of the department made under this section, including
3-8 the proposed penalty, or make a written request for a hearing on
3-9 that determination.
3-10 (c) If the person notified of the violation accepts the
3-11 determination of the department, the commissioner or the
3-12 commissioner's designee shall issue an order approving the
3-13 determination and ordering that the person pay the proposed
3-14 penalty.
3-15 Sec. 243.017. HEARING; ORDER. (a) If the person notified
3-16 fails to respond in a timely manner to the notice under Section
3-17 243.016(b) or if the person requests a hearing, the department
3-18 shall:
3-19 (1) set a hearing;
3-20 (2) give written notice of the hearing to the person;
3-21 and
3-22 (3) designate a hearings examiner to conduct the
3-23 hearing.
3-24 (b) The hearings examiner shall make findings of fact and
3-25 conclusions of law and shall promptly issue to the commissioner or
3-26 the commissioner's designee a proposal for decision as to the
3-27 occurrence of the violation and a recommendation as to the amount
4-1 of the proposed penalty if a penalty is determined to be warranted.
4-2 (c) Based on the findings of fact and conclusions of law and
4-3 the recommendations of the hearings examiner, the commissioner or
4-4 the commissioner's designee by order may find that a violation has
4-5 occurred and may assess a penalty, or may find that no violation
4-6 has occurred.
4-7 Sec. 243.018. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
4-8 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
4-9 the order under Section 243.017(c) to the person notified. The
4-10 notice must include:
4-11 (1) separate statements of the findings of fact and
4-12 conclusions of law;
4-13 (2) the amount of any penalty assessed; and
4-14 (3) a statement of the right of the person to judicial
4-15 review of the order.
4-16 (b) Not later than the 30th day after the date on which the
4-17 decision is final as provided by Chapter 2001, Government Code, the
4-18 person shall:
4-19 (1) pay the penalty;
4-20 (2) pay the penalty and file a petition for judicial
4-21 review contesting the occurrence of the violation, the amount of
4-22 the penalty, or both the occurrence of the violation and the amount
4-23 of the penalty; or
4-24 (3) without paying the penalty, file a petition for
4-25 judicial review contesting the occurrence of the violation, the
4-26 amount of the penalty, or both the occurrence of the violation and
4-27 the amount of the penalty.
5-1 (c) Within the 30-day period, a person who acts under
5-2 Subsection (b)(3) may:
5-3 (1) stay enforcement of the penalty by:
5-4 (A) paying the penalty to the court for
5-5 placement in an escrow account; or
5-6 (B) giving to the court a supersedeas bond that
5-7 is approved by the court for the amount of the penalty and that is
5-8 effective until all judicial review of the order is final; or
5-9 (2) request the court to stay enforcement of the
5-10 penalty by:
5-11 (A) filing with the court a sworn affidavit of
5-12 the person stating that the person is financially unable to pay the
5-13 amount of the penalty and is financially unable to give a
5-14 supersedeas bond; and
5-15 (B) giving a copy of the affidavit to the
5-16 department by certified mail.
5-17 (d) If the department receives a copy of an affidavit under
5-18 Subsection (c)(2), the department may file with the court, within
5-19 five days after the date the copy is received, a contest to the
5-20 affidavit. The court shall hold a hearing on the facts alleged in
5-21 the affidavit as soon as practicable and shall stay the enforcement
5-22 of the penalty on finding that the alleged facts are true. The
5-23 person who files an affidavit has the burden of proving that the
5-24 person is financially unable to pay the penalty and is financially
5-25 unable to give a supersedeas bond.
5-26 (e) If the person does not pay the penalty and the
5-27 enforcement of the penalty is not stayed, the department may refer
6-1 the matter to the attorney general for collection of the penalty.
6-2 (f) Judicial review of the order:
6-3 (1) is instituted by filing a petition as provided by
6-4 Subchapter G, Chapter 2001, Government Code; and
6-5 (2) is under the substantial evidence rule.
6-6 (g) If the court sustains the occurrence of the violation,
6-7 the court may uphold or reduce the amount of the penalty and order
6-8 the person to pay the full or reduced amount of the penalty. If
6-9 the court does not sustain the occurrence of the violation, the
6-10 court shall order that no penalty is owed.
6-11 (h) When the judgment of the court becomes final, the court
6-12 shall proceed under this subsection. If the person paid the amount
6-13 of the penalty under Subsection (b)(2) and if that amount is
6-14 reduced or is not upheld by the court, the court shall order that
6-15 the department pay the appropriate amount plus accrued interest to
6-16 the person. The rate of the interest is the rate charged on loans
6-17 to depository institutions by the New York Federal Reserve Bank,
6-18 and the interest shall be paid for the period beginning on the date
6-19 the penalty was paid and ending on the date the penalty is
6-20 remitted. If the person paid the penalty under Subsection
6-21 (c)(1)(A), or gave a supersedeas bond and if the amount of the
6-22 penalty is not upheld by the court, the court shall order the
6-23 release of the escrow account or bond. If the person paid the
6-24 penalty under Subsection (c)(1)(A) and the amount of the penalty is
6-25 reduced, the court shall order that the amount of the penalty be
6-26 paid to the department from the escrow account and that the
6-27 remainder of the account be released. If the person gave a
7-1 supersedeas bond and if the amount of the penalty is reduced, the
7-2 court shall order the release of the bond after the person pays the
7-3 amount.
7-4 Sec. 243.019. PENALTY DEPOSITED TO STATE TREASURY. A civil
7-5 or administrative penalty collected under this chapter shall be
7-6 deposited in the state treasury to the credit of the general
7-7 revenue fund.
7-8 Sec. 243.020. RECOVERY OF COSTS. (a) The department may
7-9 assess reasonable expenses and costs against a person in an
7-10 administrative hearing if, as a result of the hearing, the person's
7-11 license is denied, suspended, or revoked or if administrative
7-12 penalties are assessed against the person. The person shall pay
7-13 expenses and costs assessed under this subsection not later than
7-14 the 30th day after the date the order of the commissioner or the
7-15 commissioner's designee requiring the payment of expenses and costs
7-16 is final. The department may refer the matter to the attorney
7-17 general for collection of the expenses and costs.
7-18 (b) If the attorney general brings an action against a
7-19 person under Section 243.012 or 243.014 or to enforce an
7-20 administrative penalty assessed under Section 243.015, and an
7-21 injunction is granted against the person or the person is found
7-22 liable for a civil or administrative penalty, the attorney general
7-23 may recover, on behalf of the attorney general and the department,
7-24 reasonable expenses and costs.
7-25 (c) For purposes of this section, "reasonable expenses and
7-26 costs" include expenses incurred by the department and the attorney
7-27 general in the investigation, initiation, or prosecution of an
8-1 action, including reasonable investigative costs, court costs,
8-2 attorney's fees, witness fees, and deposition expenses.
8-3 (d) Costs and expenses collected under this section shall be
8-4 deposited in the general revenue fund to the credit of the
8-5 ambulatory surgical center penalty account. Money in the account
8-6 may be appropriated only to the department to administer this
8-7 chapter. Section 403.095, Government Code, does not apply to the
8-8 account.
8-9 SECTION 3. (a) This Act takes effect September 1, 1999.
8-10 (b) The changes in law made by this Act relating to
8-11 emergency suspension and administrative penalties apply only to a
8-12 violation that occurs on or after the effective date of this Act.
8-13 For the purposes of this section, an offense is committed before
8-14 the effective date of this Act if any element of the offense occurs
8-15 before that date. A violation that occurred before the effective
8-16 date of this Act is covered by the law in effect when the violation
8-17 occurred, and the former law is continued in effect for that
8-18 purpose.
8-19 SECTION 4. The importance of this legislation and the
8-20 crowded condition of the calendars in both houses create an
8-21 emergency and an imperative public necessity that the
8-22 constitutional rule requiring bills to be read on three several
8-23 days in each house be suspended, and this rule is hereby suspended.