SRC-CTC, JBJ S.B. 39 77(R)   BILL ANALYSIS

     
Senate Research Center   S.B. 39
77R507 MI-DBy: Zaffirini
Health & Human Services
2/21/2001
As Filed


DIGEST AND PURPOSE 

Currently, Texas has no enforcement options for an out-of-compliance
assisted living facility other than revoking its license, closing the
facility, or referring the case to the Office of the Attorney General.  As
proposed, S.B. 39 provides a full range of administrative penalties for use
by the state to sanction assisted living facilities that do not meet
standards. 

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 247.002, Heath and Safety Code, by adding
Subdivision (7), to define "commissioner." 

SECTION 2.  Amends Section 247.0455, Health and Safety Code, to redesignate
Section 247.0455 to Section 247.0459. 

SECTION 3.  Amends Chapter 247C, Health and Safety Code, by adding Sections
247.0451 through 247.0457, as follows: 

Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) Authorizes the Texas Department
of Human Services (department) to assess an administrative penalty against
a person who: 

     _violates this chapter or a rule, standard, or order adopted or
license issued under this chapter; 

       _makes a false statement, that the person knows or should know is
false, of a material fact under certain conditions; 

     _refuses to allow a representative of the department to inspect
certain items; 

       _wilfully interferes with the work of a representative of the
department or the enforcement of this chapter; 

     _wilfully interferes with a representative of the department
preserving evidence of a violation of this chapter or a rule, standard, or
order adopted or license issued under this chapter; or 

     _fails to pay a penalty assessed under this chapter not later than the
30th day after the date the assessment of the penalty becomes final. 

(b) Prohibits the penalty, except as provided by Subsection (d), from
exceeding $5,000 for each violation. 
 
(c) Requires a notice of any violation observed by a representative of the
department during an inspection that results in a recommendation of an
administrative penalty to be provided in writing to the assisted living
facility.  Requires the written notice to identify the specific law or
regulation that has been violated and include the name of the department
representative recommending the penalty.  

(d) Prohibits the penalty for a violation of a right of a resident under
Section 247.064 from exceeding $1,000 for each violation.  Provides that
this subsection does not apply to conduct that also violates another
provision of this chapter or a rule, standard, or order adopted or license
issued under this chapter. 

(e) Requires the Texas Board of Human Services (board) to establish
gradations of penalties in accordance with the relative seriousness of the
violation. 
  
(f) Requires the department to consider, in determining the amount of a
penalty, any matter that justice may require, including certain matters. 

(g) Provides that a penalty assessed under Subsection (a)(6) is in addition
to the penalty previously assessed and not timely paid. 

Sec. 247.0452. RIGHT TO CORRECT. (a) Prohibits the department from
collecting an administrative penalty from an assisted living facility under
Section 247.0451 if, not later than the 45th day after the date the
facility receives notice under Section 247.0453(c), the facility corrects
the violation. 

  (b) Provides that Subsection (a) does not apply:

     _to a violation that the department determines meets certain criteria;

     _to a violation described by Sections 247.0451(a)(2)-(6); or

     _to a violation or a right of a resident under Section 247.064.

Sec. 247.0453. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. (a) Authorizes
the department to issue a preliminary report stating the facts on which the
department concludes that a violation of this chapter or a rule, standard,
or order adopted or license issued under this chapter has occurred if the
department has met certain conditions. 

(b) Authorizes the report to recommend a penalty under Section 247.0451 and
the amount of the penalty. 

(c) Requires the department to give written notice of the report to the
person charged with the violation not later than the 10th day after the
date the report is issued.  Requires the notice to include certain
information. 

(d) Authorizes the person charged, not later than the 20th day after the
date the notice under Subsection (c) is sent, to: 

     _give to the department written consent to the department's report,
including the recommended penalty; 

   _make a written request for a hearing; or

      _if the violation is subject to correction under Section 247.0452,
submit a plan of correction to the department for approval. 
 
(e) Requires the department, if the violation is subject to correction
under Section 247.0452 and the person reports to the department that the
violation has been corrected, to inspect the correction or take any other
step necessary to confirm the correction. Requires the department to notify
the person that the correction is satisfactory and a penalty will not be
assessed, or the correction is not satisfactory and a penalty is
recommended. 

(f) Authorizes the person charged, not later than the 20th day after the
date a notice under Subsection (e)(2) is sent, to give to the department
written consent to the department's report, including the recommended
penalty, or make a written request for a hearing. 

(g) Requires the commissioner of human services (commissioner) or the
commissioner's designee to assess the penalty recommended by the department
if the person charged with the violation consents to the penalty
recommended by the department or does not timely respond to a notice sent
under Subsection (c) or (e)(2).  

(h) Requires the department to give written notice to the person charged of
the decision and requires the person to pay the penalty, if the
commissioner or the commissioner's designee assesses the recommended
penalty. 

Sec. 247.0454. HEARING ON ADMINISTRATIVE PENALTY. (a) Requires an
administrative law judge to order a hearing and give notice of the hearing
if a person charged with a violation under Section 247.0451 timely requests
a hearing. 

  (b) Requires the hearing to be held before an administrative law judge.

(c) Requires the administrative law judge to make findings of fact and
conclusions of law and promptly issue to the commissioner a written
decision regarding the occurrence of a violation of this chapter or a rule,
standard, or order adopted or license issued under this chapter and a
recommendation regarding the amount of the proposed penalty if a penalty is
warranted. 

(d) Authorizes the commissioner, based on the findings of fact and
conclusion of law and the recommendation of the administrative law judge
to, by order, finds that a violation has occurred and assess an
administrative penalty, or find that a violation has not occurred. 

(e) Provides that proceedings under this section are subject to Chapter
2001 (Administrative Procedure), Government Code. 

 Sec. 247.0455.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; INTEREST;
REFUND. (a)  Requires the commissioner to give notice of the findings made
under Section 247.0454(d) to the person charged.  Requires the
commissioner, if the commissioner finds that a violation has occurred, to
give to the person charged written notice of certain information. 

(b) Requires the person charged with the penalty, not later than the 30th
day after the date the commissioner's order is final, to pay the full
amount of the penalty, or file a petition for judicial review contesting
the occurrence of the violation, the amount of the penalty, the failure to
correct the violation to the department's satisfaction, or any combination
of those issues. 
          
(c) Authorizes the department to permit the person to pay a penalty,
notwithstanding Subsection (b), in installments or may require the person
to use all or part of the amount of the penalty in accordance with Section
247.0457. 
 
(d) Provides that if the person does not pay the penalty within the period
provided by Subsection (b) or in accordance with Subsection (c), if
applicable, the penalty is subject to interest, and the department is
authorized to refer the matter to the attorney general for collection of
the penalty and interest. 

(e) Provides that interest under Subsection (d)(1) accrues at a rate equal
to the rate charged on loans to depository institutions by the New York
Federal Reserve Bank; and for the period beginning on the date after the
date the penalty becomes due and ending on the date the penalty is paid. 

(f) Requires the commissioner, if a penalty is reduced or not assessed as a
result of judicial review, to remit to the person charged the appropriate
amount of any penalty payment plus accrued interest; or execute a release
of the supersedeas bond if one has been posted. 

(g) Requires accrued interest on amounts remitted by the commissioner under
Subsection (f)(1) to be paid at a rate equal to the rate charged on loans
to depository institutions by the New York Federal Reserve Bank; and for
the period beginning on the date the penalty is paid and ending on the date
the penalty is remitted to the person charged. 

Sec. 247.0456.  APPLICATION OF OTHER LAW.  Prohibits the department from
assessing, except as provided by Section 247.0451(a)(6), more than one
monetary penalty under this chapter for a violation arising out of the same
act or failure to act. 

Sec. 247.0457.  AMELIORATION OF VIOLATION.  Authorizes the commissioner,
instead of ordering payment of an administrative penalty authorized by this
subchapter, to require a person subject to the penalty to use, under the
supervision of the department, all or part of the amount of the penalty to
ameliorate the violation or to improve services, other than administrative
services, in the assisted living facility affected by the violation. 

SECTION 4.  Amends Section 247.049(b), Health and Safety Code, to provide
that Subsection (a) does not bar the admission into evidence of department
reports or other documents in an enforcement action in which the state or
an agency or political subdivision of the state is a party, including a
contested case hearing on the imposition of an administrative penalty under
Section 247.0451. 

SECTION 5. Effective date: September 1, 2001.