SRC-CTC S.B. 527 77(R)   BILL ANALYSIS


Senate Research Center   S.B. 527
77R2546 JRD-DBy: Moncrief
Health & Human Services
4/6/2001
As Filed


DIGEST AND PURPOSE 

Currently, the enforcement remedies in the personal care facility statute
provide questionable protection of residents in assisted living facilities.
Under current law, the state must choose between completely closing down a
facility at the inconvenience of its residents, or letting the facility
continue to operate without any enforcement action.  As proposed, S.B. 527
creates legislation regulating procedures for assessing and determining
violations and penalties for personal care facilities to increase the
state's enforcement choices regarding personal care facilities.  

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, Health and Safety Code, to define
"commissioner." 

SECTION 2.  Redesignates Section 247.0455, Health and Safety Code, as
Section 247.0459, Health and Safety Code. 

SECTION 3.  Amends Chapter 247C, Health and Safety Code, by adding Sections
247.0451247.0457, 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 commits certain acts.   

(b) Prohibits a penalty from exceeding $10,000 a day for each violation,
except as provided by Subsection (c) and Section 247.0452(c).   

(c) Prohibits a penalty for a violation of a right of a resident from
exceeding $1,000 a day for each violation.  Provides that this subsection
does not apply to conduct that violates certain other regulations. 

(d) Provides that each day of a continuing violation constitutes a separate
violation. 

(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, in determining the amount of a penalty, to
consider any matter that justice may require, including certain aspects of
the violation. 

(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 the facility corrects the violation not later than the
45th day after the date it receives notice under Section 247.0453(c). 

  (b) Provides that Subsection (a) does not apply in certain situations.

(c) Requires an assisted living facility that corrects a violation to
maintain the correction. Authorizes the department, if the facility fails
to maintain the correction for at least one year from the date the
correction was made, to assess and collect an administrative penalty for
the subsequent violation.  Sets forth the amount of the administrative
penalty. Provides that the department is not required to provide the
facility with an opportunity to correct the subsequent violation. 

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 certain regulations has occurred
if the department has completed certain actions.   

(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 that the 10th day after the
date on which the report was issued.  Requires the notice to include
certain items. 
 
(d) Authorizes the person charged, not later than the 20th day after the
date on which the notice under Subsection (c) was sent, to perform certain
actions. 

(e) Require 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 or not, and whether a
penalty will be assessed or recommended. 

(f) Authorizes the person charged, not later than the 20th day after the
date on which a notice under Subsection (e)(2) is sent, to perform certain
actions. 

(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, if the commissioner or the commissioner's
designee assesses the recommended penalty, to give written notice to the
person charged of the decision.  Requires the person to pay the 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 specific violation 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 certain regulations
and a recommendation regarding the amount of the proposed penalty if a
penalty is warranted. 

(d) Authorizes the commissioner to make, by order, certain findings based
on the findings, conclusions, and recommendations of the administrative law
judge. 

(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, on finding that a violation has occurred, to give the person
charged written notice of certain items. 

(b) Requires the person charged with the penalty to perform certain actions
not later than the 30th day after the date on which the commissioner's
order is final. 

(c) Authorizes the department, notwithstanding Subsection (b), to permit
the person to pay the penalty in installments or require the person to use
all or part of the amount of the penalty in accordance with Section
247.0457. 

(d) Sets forth certain conditions which apply if the person does not pay
the penalty within the period provided by Subsection (b) or in accordance
with Subsection (c). 

  (e) Sets forth the manner in which interest under Subsection (d)(1)
accrues. 

(f) Requires the commissioner to complete certain actions if the amount of
the penalty is reduced or the assessment of the penalty is not upheld on
judicial review. 

(g) Sets forth provisions regarding the payment of accrued interest on
amounts remitted by the commissioner under Subsection (f)(1). 

Sec. 247.0456.  APPLICATION OF OTHER LAW.  Prohibits the department, except
as provided by specific sections, from assessing more than one monetary
penalty under this chapter for a violation arising out of the same act or
failure to act.  Provides that this section does not prohibit the
department from assessing a monetary penalty under this chapter and a
monetary penalty under Chapter 32 (Medical Assistance Program), Human
Resources Code, for the same act or failure to act.   

Sec. 247.0457.  AMELIORATION OF VIOLATION.  Authorizes the commissioner to
require, in lieu of ordering payment of a specific administrative penalty,
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 add an
action seeking imposition of an administrative penalty under this
subchapter to the list of items which are barred from admission into
evidence in a certain enforcement action by Section 247.049(a). 

SECTION 5.  Effective date: September 1, 2001.