By Zaffirini S.B. No. 39
77R507 MI-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to imposition of administrative penalties against assisted
1-3 living facilities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 247.002, Health and Safety Code, is
1-6 amended by adding Subdivision (7) to read as follows:
1-7 (7) "Commissioner" means the commissioner of human
1-8 services.
1-9 SECTION 2. Section 247.0455, Health and Safety Code, is
1-10 redesignated as Section 247.0459, Health and Safety Code, to read
1-11 as follows:
1-12 Sec. 247.0459 [247.0455]. VIOLATION OF LAW RELATING TO
1-13 ADVANCE DIRECTIVES. (a) The department shall assess an
1-14 administrative penalty against a personal care facility that
1-15 violates Section 166.004.
1-16 (b) A penalty assessed under this section shall be $500.
1-17 (c) The penalty shall be assessed in accordance with
1-18 department rules. The rules must provide for notice and an
1-19 opportunity for a hearing.
1-20 SECTION 3. Subchapter C, Chapter 247, Health and Safety Code,
1-21 is amended by adding Sections 247.0451 through 247.0457 to read as
1-22 follows:
1-23 Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) The department
1-24 may assess an administrative penalty against a person who:
2-1 (1) violates this chapter or a rule, standard, or
2-2 order adopted or license issued under this chapter;
2-3 (2) makes a false statement, that the person knows or
2-4 should know is false, of a material fact:
2-5 (A) on an application for issuance or renewal of
2-6 a license or in an attachment to the application; or
2-7 (B) with respect to a matter under investigation
2-8 by the department;
2-9 (3) refuses to allow a representative of the
2-10 department to inspect:
2-11 (A) a book, record, or file required to be
2-12 maintained by an assisted living facility; or
2-13 (B) any portion of the premises of an assisted
2-14 living facility;
2-15 (4) wilfully interferes with the work of a
2-16 representative of the department or the enforcement of this
2-17 chapter;
2-18 (5) wilfully interferes with a representative of the
2-19 department preserving evidence of a violation of this chapter or a
2-20 rule, standard, or order adopted or license issued under this
2-21 chapter; or
2-22 (6) fails to pay a penalty assessed under this chapter
2-23 not later than the 30th day after the date the assessment of the
2-24 penalty becomes final.
2-25 (b) Except as provided by Subsection (d), the penalty may
2-26 not exceed $5,000 for each violation.
2-27 (c) Notice of any violation observed by a representative of
3-1 the department during an inspection that results in a
3-2 recommendation of an administrative penalty shall be provided in
3-3 writing to the assisted living facility. The written notice must
3-4 identify the specific law or regulation that has been violated and
3-5 include the name of the department representative recommending the
3-6 penalty.
3-7 (d) The penalty for a violation of a right of a resident
3-8 under Section 247.064 may not exceed $1,000 for each violation.
3-9 This subsection does not apply to conduct that also violates
3-10 another provision of this chapter or a rule, standard, or order
3-11 adopted or license issued under this chapter.
3-12 (e) The board shall establish gradations of penalties in
3-13 accordance with the relative seriousness of the violation.
3-14 (f) In determining the amount of a penalty, the department
3-15 shall consider any matter that justice may require, including:
3-16 (1) the size of the assisted living facility;
3-17 (2) the gradations of penalties established under
3-18 Subsection (e);
3-19 (3) the seriousness of the violation, including the
3-20 nature, circumstances, extent, and gravity of the prohibited act
3-21 and the hazard or potential hazard created by the act to the health
3-22 or safety of the public;
3-23 (4) the history of previous violations;
3-24 (5) deterrence of future violations; and
3-25 (6) efforts to correct the violation.
3-26 (g) A penalty assessed under Subsection (a)(6) is in
3-27 addition to the penalty previously assessed and not timely paid.
4-1 Sec. 247.0452. RIGHT TO CORRECT. (a) The department may not
4-2 collect an administrative penalty from an assisted living facility
4-3 under Section 247.0451 if, not later than the 45th day after the
4-4 date the facility receives notice under Section 247.0453(c), the
4-5 facility corrects the violation.
4-6 (b) Subsection (a) does not apply:
4-7 (1) to a violation that the department determines:
4-8 (A) resulted in serious harm to or death of a
4-9 resident;
4-10 (B) constitutes a serious threat to the health
4-11 or safety of a resident; or
4-12 (C) substantially limits the assisted living
4-13 facility's capacity to provide care;
4-14 (2) to a violation described by Sections
4-15 247.0451(a)(2)-(6); or
4-16 (3) to a violation of a right of a resident under
4-17 Section 247.064.
4-18 Sec. 247.0453. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
4-19 (a) The department may issue a preliminary report stating the
4-20 facts on which the department concludes that a violation of this
4-21 chapter or a rule, standard, or order adopted or license issued
4-22 under this chapter has occurred if the department has:
4-23 (1) examined the possible violation and facts
4-24 surrounding the possible violation; and
4-25 (2) concluded that a violation has occurred.
4-26 (b) The report may recommend a penalty under Section
4-27 247.0451 and the amount of the penalty.
5-1 (c) The department shall give written notice of the report
5-2 to the person charged with the violation not later than the 10th
5-3 day after the date the report is issued. The notice must include:
5-4 (1) a brief summary of the charges;
5-5 (2) a statement of the amount of penalty recommended;
5-6 (3) a statement of whether the violation is subject to
5-7 correction under Section 247.0452 and, if the violation is subject
5-8 to correction under that section, a statement of:
5-9 (A) the date on which the assisted living
5-10 facility must file with the department a plan of correction to be
5-11 approved by the department; and
5-12 (B) the date on which the plan of correction
5-13 must be completed to avoid assessment of the penalty; and
5-14 (4) a statement that the person charged has a right to
5-15 a hearing on the occurrence of the violation, the amount of the
5-16 penalty, or both.
5-17 (d) Not later than the 20th day after the date the notice
5-18 under Subsection (c) is sent, the person charged may:
5-19 (1) give to the department written consent to the
5-20 department's report, including the recommended penalty;
5-21 (2) make a written request for a hearing; or
5-22 (3) if the violation is subject to correction under
5-23 Section 247.0452, submit a plan of correction to the department for
5-24 approval.
5-25 (e) If the violation is subject to correction under Section
5-26 247.0452 and the person reports to the department that the
5-27 violation has been corrected, the department shall inspect the
6-1 correction or take any other step necessary to confirm the
6-2 correction and shall notify the person that:
6-3 (1) the correction is satisfactory and a penalty will
6-4 not be assessed; or
6-5 (2) the correction is not satisfactory and a penalty
6-6 is recommended.
6-7 (f) Not later than the 20th day after the date a notice
6-8 under Subsection (e)(2) is sent, the person charged may:
6-9 (1) give to the department written consent to the
6-10 department's report, including the recommended penalty; or
6-11 (2) make a written request for a hearing.
6-12 (g) If the person charged with the violation consents to the
6-13 penalty recommended by the department or does not timely respond to
6-14 a notice sent under Subsection (c) or (e)(2), the commissioner or
6-15 the commissioner's designee shall assess the penalty recommended by
6-16 the department.
6-17 (h) If the commissioner or the commissioner's designee
6-18 assesses the recommended penalty, the department shall give written
6-19 notice to the person charged of the decision and the person shall
6-20 pay the penalty.
6-21 Sec. 247.0454. HEARING ON ADMINISTRATIVE PENALTY. (a) An
6-22 administrative law judge shall order a hearing and give notice of
6-23 the hearing if a person charged with a violation under Section
6-24 247.0451 timely requests a hearing.
6-25 (b) The hearing shall be held before an administrative law
6-26 judge.
6-27 (c) The administrative law judge shall make findings of fact
7-1 and conclusions of law and promptly issue to the commissioner a
7-2 written decision regarding the occurrence of a violation of this
7-3 chapter or a rule, standard, or order adopted or license issued
7-4 under this chapter and a recommendation regarding the amount of the
7-5 proposed penalty if a penalty is warranted.
7-6 (d) Based on the findings of fact and conclusions of law and
7-7 the recommendation of the administrative law judge, the
7-8 commissioner by order may:
7-9 (1) find that a violation has occurred and assess an
7-10 administrative penalty; or
7-11 (2) find that a violation has not occurred.
7-12 (e) Proceedings under this section are subject to Chapter
7-13 2001, Government Code.
7-14 Sec. 247.0455. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
7-15 INTEREST; REFUND. (a) The commissioner shall give notice of the
7-16 findings made under Section 247.0454(d) to the person charged. If
7-17 the commissioner finds that a violation has occurred, the
7-18 commissioner shall give to the person charged written notice of:
7-19 (1) the findings;
7-20 (2) the amount of the administrative penalty;
7-21 (3) the rate of interest payable with respect to the
7-22 penalty and the date on which interest begins to accrue;
7-23 (4) whether action under Section 247.0457 is required
7-24 instead of payment of all or part of the penalty; and
7-25 (5) the person's right to judicial review of the
7-26 commissioner's order.
7-27 (b) Not later than the 30th day after the date the
8-1 commissioner's order is final, the person charged with the penalty
8-2 shall:
8-3 (1) pay the full amount of the penalty; or
8-4 (2) file a petition for judicial review contesting the
8-5 occurrence of the violation, the amount of the penalty, the failure
8-6 to correct the violation to the department's satisfaction, or any
8-7 combination of those issues.
8-8 (c) Notwithstanding Subsection (b), the department may
8-9 permit the person to pay a penalty in installments or may require
8-10 the person to use all or part of the amount of the penalty in
8-11 accordance with Section 247.0457.
8-12 (d) If the person does not pay the penalty within the period
8-13 provided by Subsection (b) or in accordance with Subsection (c), if
8-14 applicable:
8-15 (1) the penalty is subject to interest; and
8-16 (2) the department may refer the matter to the
8-17 attorney general for collection of the penalty and interest.
8-18 (e) Interest under Subsection (d)(1) accrues:
8-19 (1) at a rate equal to the rate charged on loans to
8-20 depository institutions by the New York Federal Reserve Bank; and
8-21 (2) for the period beginning on the date after the
8-22 date the penalty becomes due and ending on the date the penalty is
8-23 paid.
8-24 (f) If a penalty is reduced or not assessed as a result of
8-25 judicial review, the commissioner shall:
8-26 (1) remit to the person charged the appropriate amount
8-27 of any penalty payment plus accrued interest; or
9-1 (2) execute a release of the supersedeas bond if one
9-2 has been posted.
9-3 (g) Accrued interest on amounts remitted by the commissioner
9-4 under Subsection (f)(1) shall be paid:
9-5 (1) at a rate equal to the rate charged on loans to
9-6 depository institutions by the New York Federal Reserve Bank; and
9-7 (2) for the period beginning on the date the penalty
9-8 is paid and ending on the date the penalty is remitted to the
9-9 person charged.
9-10 Sec. 247.0456. APPLICATION OF OTHER LAW. Except as provided
9-11 by Section 247.0451(a)(6), the department may not assess more than
9-12 one monetary penalty under this chapter for a violation arising out
9-13 of the same act or failure to act.
9-14 Sec. 247.0457. AMELIORATION OF VIOLATION. Instead of
9-15 ordering payment of an administrative penalty authorized by this
9-16 subchapter, the commissioner may require a person subject to the
9-17 penalty to use, under the supervision of the department, all or
9-18 part of the amount of the penalty to ameliorate the violation or to
9-19 improve services, other than administrative services, in the
9-20 assisted living facility affected by the violation.
9-21 SECTION 4. Section 247.049(b), Health and Safety Code, is
9-22 amended to read as follows:
9-23 (b) Subsection (a) does not:
9-24 (1) bar the admission into evidence of department
9-25 reports or other documents in an enforcement action in which the
9-26 state or an agency or political subdivision of the state is a
9-27 party, including:
10-1 (A) an action seeking injunctive relief under
10-2 Section 247.044;
10-3 (B) an action seeking imposition of a civil
10-4 penalty under Section 247.045;
10-5 (C) a contested case hearing on the imposition
10-6 of an administrative penalty under Section 247.0451; and
10-7 (D) [(C)] a contested case hearing involving
10-8 denial, suspension, or revocation of a license issued under this
10-9 chapter;
10-10 (2) bar the admission into evidence of department
10-11 reports or other documents that are offered:
10-12 (A) to establish warning or notice to an
10-13 assisted living facility of a relevant department determination; or
10-14 (B) under any rule or evidentiary predicate of
10-15 the Texas Rules of Evidence;
10-16 (3) prohibit or limit the testimony of a department
10-17 employee, in accordance with the Texas Rules of Evidence, as to
10-18 observations, factual findings, conclusions, or determinations that
10-19 an assisted living facility violated a standard prescribed under
10-20 this chapter if the observations, factual findings, conclusions, or
10-21 determinations were made in the discharge of the employee's
10-22 official duties for the department; or
10-23 (4) prohibit or limit the use of department reports or
10-24 other documents in depositions or other forms of discovery
10-25 conducted in connection with a civil action if use of the reports
10-26 or other documents appears reasonably calculated to lead to the
10-27 discovery of admissible evidence.
11-1 SECTION 5. This Act takes effect September 1, 2001.