1-1 By: Nelson S.B. No. 1249
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 April 6, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 5, Nays 0; April 6, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1249 By: Nelson
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of ambulatory surgical centers;
1-11 providing a penalty.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsection (b), Section 243.006, Health and
1-14 Safety Code, is amended to read as follows:
1-15 (b) An ambulatory surgical center licensed by the department
1-16 and certified under Title XVIII of the Social Security Act (42
1-17 U.S.C. Section 1395 et seq.) is [not] subject to an on-site
1-18 [additional] licensing inspection [inspections] under this chapter
1-19 once every three years while the center maintains the
1-20 certification.
1-21 SECTION 2. Chapter 243, Health and Safety Code, is amended
1-22 by adding Sections 243.0115, 243.015, 243.016, 243.017, 243.018,
1-23 243.019, and 243.020 to read as follows:
1-24 Sec. 243.0115. EMERGENCY SUSPENSION. The department may
1-25 issue an emergency order to suspend a license issued under this
1-26 chapter if the department has reasonable cause to believe that the
1-27 conduct of a license holder creates an immediate danger to the
1-28 public health and safety. An emergency suspension is effective
1-29 immediately without a hearing on notice to the license holder. On
1-30 written request of the license holder, the department shall conduct
1-31 a hearing not earlier than the 10th day or later than the 30th day
1-32 after the date the hearing request is received to determine if the
1-33 emergency suspension is to be continued, modified, or rescinded.
1-34 The hearing and any appeal are governed by the department's rules
1-35 for a contested case hearing and Chapter 2001, Government Code.
1-36 Sec. 243.015. ADMINISTRATIVE PENALTY. (a) The department
1-37 may assess an administrative penalty against a person who violates
1-38 this chapter or a rule adopted under this chapter.
1-39 (b) The penalty may not exceed $1,000 for each violation.
1-40 (c) In determining the amount of an administrative penalty
1-41 assessed under this section, the department shall consider:
1-42 (1) the seriousness of the violation;
1-43 (2) the history of previous violations;
1-44 (3) the amount necessary to deter future violations;
1-45 (4) efforts made to correct the violation; and
1-46 (5) any other matter that justice may require.
1-47 (d) All proceedings for the assessment of an administrative
1-48 penalty under this chapter are considered to be contested cases
1-49 under Chapter 2001, Government Code.
1-50 Sec. 243.016. NOTICE; REQUEST FOR HEARING. (a) If, after
1-51 investigation of a possible violation and the facts surrounding
1-52 that possible violation, the department determines that a violation
1-53 has occurred, the department shall give written notice of the
1-54 violation to the person alleged to have committed the violation.
1-55 The notice shall include:
1-56 (1) a brief summary of the alleged violation;
1-57 (2) a statement of the amount of the proposed penalty
1-58 based on the factors set forth in Section 243.015(c); and
1-59 (3) a statement of the person's right to a hearing on
1-60 the occurrence of the violation, the amount of the penalty, or both
1-61 the occurrence of the violation and the amount of the penalty.
1-62 (b) Not later than the 20th day after the date on which the
1-63 notice is received, the person notified may accept the
1-64 determination of the department made under this section, including
2-1 the proposed penalty, or make a written request for a hearing on
2-2 that determination.
2-3 (c) If the person notified of the violation accepts the
2-4 determination of the department, the commissioner of public health
2-5 or the commissioner's designee shall issue an order approving the
2-6 determination and ordering that the person pay the proposed
2-7 penalty.
2-8 Sec. 243.017. HEARING; ORDER. (a) If the person notified
2-9 fails to respond in a timely manner to the notice under Section
2-10 243.016(b) or if the person requests a hearing, the department
2-11 shall:
2-12 (1) set a hearing;
2-13 (2) give written notice of the hearing to the person;
2-14 and
2-15 (3) designate a hearings examiner to conduct the
2-16 hearing.
2-17 (b) The hearings examiner shall make findings of fact and
2-18 conclusions of law and shall promptly issue to the commissioner of
2-19 public health or the commissioner's designee a proposal for
2-20 decision as to the occurrence of the violation and a recommendation
2-21 as to the amount of the proposed penalty if a penalty is determined
2-22 to be warranted.
2-23 (c) Based on the findings of fact and conclusions of law and
2-24 the recommendations of the hearings examiner, the commissioner or
2-25 the commissioner's designee by order may find that a violation has
2-26 occurred and may assess a penalty or may find that no violation has
2-27 occurred.
2-28 Sec. 243.018. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
2-29 JUDICIAL REVIEW; REFUND. (a) The department shall give notice of
2-30 the order under Section 243.017(c) to the person notified. The
2-31 notice must include:
2-32 (1) separate statements of the findings of fact and
2-33 conclusions of law;
2-34 (2) the amount of any penalty assessed; and
2-35 (3) a statement of the right of the person to judicial
2-36 review of the order.
2-37 (b) Not later than the 30th day after the date on which the
2-38 decision is final as provided by Chapter 2001, Government Code, the
2-39 person shall:
2-40 (1) pay the penalty;
2-41 (2) pay the penalty and file a petition for judicial
2-42 review contesting the occurrence of the violation, the amount of
2-43 the penalty, or both the occurrence of the violation and the amount
2-44 of the penalty; or
2-45 (3) without paying the penalty, file a petition for
2-46 judicial review contesting the occurrence of the violation, the
2-47 amount of the penalty, or both the occurrence of the violation and
2-48 the amount of the penalty.
2-49 (c) Within the 30-day period, a person who acts under
2-50 Subsection (b)(3) may:
2-51 (1) stay enforcement of the penalty by:
2-52 (A) paying the penalty to the court for
2-53 placement in an escrow account; or
2-54 (B) giving to the court a supersedeas bond that
2-55 is approved by the court for the amount of the penalty and that is
2-56 effective until all judicial review of the order is final; or
2-57 (2) request the court to stay enforcement of the
2-58 penalty by:
2-59 (A) filing with the court a sworn affidavit of
2-60 the person stating that the person is financially unable to pay the
2-61 amount of the penalty and is financially unable to give a
2-62 supersedeas bond; and
2-63 (B) giving a copy of the affidavit to the
2-64 department by certified mail.
2-65 (d) If the department receives a copy of an affidavit under
2-66 Subsection (c)(2), the department may file with the court, within
2-67 five days after the date the copy is received, a contest to the
2-68 affidavit. The court shall hold a hearing on the facts alleged in
2-69 the affidavit as soon as practicable and shall stay the enforcement
3-1 of the penalty on finding that the alleged facts are true. The
3-2 person who files an affidavit has the burden of proving that the
3-3 person is financially unable to pay the penalty and is financially
3-4 unable to give a supersedeas bond.
3-5 (e) If the person does not pay the penalty and the
3-6 enforcement of the penalty is not stayed, the department may refer
3-7 the matter to the attorney general for collection of the penalty.
3-8 (f) Judicial review of the order:
3-9 (1) is instituted by filing a petition as provided by
3-10 Subchapter G, Chapter 2001, Government Code; and
3-11 (2) is under the substantial evidence rule.
3-12 (g) If the court sustains the occurrence of the violation,
3-13 the court may uphold or reduce the amount of the penalty and order
3-14 the person to pay the full or reduced amount of the penalty. If
3-15 the court does not sustain the occurrence of the violation, the
3-16 court shall order that no penalty is owed.
3-17 (h) When the judgment of the court becomes final, the court
3-18 shall proceed under this subsection. If the person paid the amount
3-19 of the penalty under Subsection (b)(2) and if that amount is
3-20 reduced or is not upheld by the court, the court shall order that
3-21 the department pay the appropriate amount plus accrued interest to
3-22 the person. The rate of the interest is the rate charged on loans
3-23 to depository institutions by the New York Federal Reserve Bank,
3-24 and the interest shall be paid for the period beginning on the date
3-25 the penalty was paid and ending on the date the penalty is
3-26 remitted. If the person paid the penalty under Subsection
3-27 (c)(1)(A), or gave a supersedeas bond and if the amount of the
3-28 penalty is not upheld by the court, the court shall order the
3-29 release of the escrow account or bond. If the person paid the
3-30 penalty under Subsection (c)(1)(A) and the amount of the penalty is
3-31 reduced, the court shall order that the amount of the penalty be
3-32 paid to the department from the escrow account and that the
3-33 remainder of the account be released. If the person gave a
3-34 supersedeas bond and if the amount of the penalty is reduced, the
3-35 court shall order the release of the bond after the person pays the
3-36 amount.
3-37 Sec. 243.019. PENALTY DEPOSITED TO STATE TREASURY. A civil
3-38 or administrative penalty collected under this chapter shall be
3-39 deposited in the state treasury to the credit of the general
3-40 revenue fund.
3-41 Sec. 243.020. RECOVERY OF COSTS. (a) The department may
3-42 assess reasonable expenses and costs against a person in an
3-43 administrative hearing if, as a result of the hearing, the person's
3-44 license is denied, suspended, or revoked or if administrative
3-45 penalties are assessed against the person. The person shall pay
3-46 expenses and costs assessed under this subsection not later than
3-47 the 30th day after the date the order of the commissioner of public
3-48 health or the commissioner's designee requiring the payment of
3-49 expenses and costs is final. The department may refer the matter
3-50 to the attorney general for collection of the expenses and costs.
3-51 (b) If the attorney general brings an action against a
3-52 person under Section 243.012 or 243.014 or to enforce an
3-53 administrative penalty assessed under Section 243.015, and an
3-54 injunction is granted against the person or the person is found
3-55 liable for a civil or administrative penalty, the attorney general
3-56 may recover, on behalf of the attorney general and the department,
3-57 reasonable expenses and costs.
3-58 (c) For purposes of this section, "reasonable expenses and
3-59 costs" include expenses incurred by the department and the attorney
3-60 general in the investigation, initiation, or prosecution of an
3-61 action, including reasonable investigative costs, court costs,
3-62 attorney's fees, witness fees, and deposition expenses.
3-63 (d) Costs and expenses collected under this section shall be
3-64 deposited in the general revenue fund to the credit of the
3-65 ambulatory surgical center penalty account. Money in the account
3-66 may be appropriated only to the department to administer this
3-67 chapter. Section 403.095, Government Code, does not apply to the
3-68 account.
3-69 SECTION 3. (a) This Act takes effect September 1, 1999.
4-1 (b) The changes in law made by this Act relating to
4-2 emergency suspension and administrative penalties apply only to a
4-3 violation that occurs on or after the effective date of this Act.
4-4 For the purposes of this section, an offense is committed before
4-5 the effective date of this Act if any element of the offense occurs
4-6 before that date. A violation that occurred before the effective
4-7 date of this Act is covered by the law in effect when the violation
4-8 occurred, and the former law is continued in effect for that
4-9 purpose.
4-10 SECTION 4. The importance of this legislation and the
4-11 crowded condition of the calendars in both houses create an
4-12 emergency and an imperative public necessity that the
4-13 constitutional rule requiring bills to be read on three several
4-14 days in each house be suspended, and this rule is hereby suspended.
4-15 * * * * *