By Moncrief S.B. No. 527
77R2546 JRD-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
1-21 Code, is amended by adding Sections 247.0451-247.0457 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 under this chapter or a term of a license issued
2-3 under this chapter;
2-4 (2) makes a false statement, that the person knows or
2-5 should know is false, of a material fact:
2-6 (A) on an application for issuance or renewal of
2-7 a license or in an attachment to the application; or
2-8 (B) with respect to a matter under investigation
2-9 by the department;
2-10 (3) refuses to allow a representative of the
2-11 department to inspect:
2-12 (A) a book, record, or file required to be
2-13 maintained by an assisted living facility; or
2-14 (B) any portion of the premises of an assisted
2-15 living facility;
2-16 (4) wilfully interferes with the work of a
2-17 representative of the department or the enforcement of this
2-18 chapter;
2-19 (5) wilfully interferes with a representative of the
2-20 department preserving evidence of a violation of this chapter or a
2-21 rule, standard, or order adopted under this chapter or a term of a
2-22 license issued under this chapter; or
2-23 (6) fails to pay a penalty assessed under this chapter
2-24 not later than the 10th day after the date the assessment of the
2-25 penalty becomes final.
2-26 (b) Except as provided by Subsection (c) and Section
2-27 247.0452(c), the penalty may not exceed $10,000 a day for each
3-1 violation.
3-2 (c) The penalty for a violation of a right of a resident
3-3 under Section 247.064 may not exceed $1,000 a day for each
3-4 violation. This subsection does not apply to conduct that also
3-5 violates another provision in this chapter or a rule, standard, or
3-6 order adopted under this chapter or a term of a license issued
3-7 under this chapter.
3-8 (d) Each day of a continuing violation constitutes a
3-9 separate violation.
3-10 (e) The board shall establish gradations of penalties in
3-11 accordance with the relative seriousness of the violation.
3-12 (f) In determining the amount of a penalty, the department
3-13 shall consider any matter that justice may require, including:
3-14 (1) the gradations of penalties established under
3-15 Subsection (e);
3-16 (2) the seriousness of the violation, including the
3-17 nature, circumstances, extent, and gravity of the prohibited act
3-18 and the hazard or potential hazard created by the act to the health
3-19 or safety of the public;
3-20 (3) the history of previous violations;
3-21 (4) deterrence of future violations; and
3-22 (5) efforts to correct the violation.
3-23 (g) A penalty assessed under Subsection (a)(6) is in
3-24 addition to the penalty previously assessed and not timely paid.
3-25 Sec. 247.0452. RIGHT TO CORRECT. (a) The department may
3-26 not collect an administrative penalty from an assisted living
3-27 facility under Section 247.0451 if, not later than the 45th day
4-1 after the date the facility receives notice under Section
4-2 247.0453(c), the facility corrects the violation.
4-3 (b) Subsection (a) does not apply:
4-4 (1) to a violation that the department determines:
4-5 (A) results in serious harm to or death of a
4-6 resident;
4-7 (B) constitutes a serious threat to the health
4-8 or safety of a resident; or
4-9 (C) substantially limits the assisted living
4-10 facility's capacity to provide care;
4-11 (2) to a violation described by Sections
4-12 247.0451(a)(2)-(6); or
4-13 (3) to a violation of a right of a resident under
4-14 Section 247.064.
4-15 (c) An assisted living facility that corrects a violation
4-16 must maintain the correction. If the facility fails to maintain
4-17 the correction until at least the first anniversary of the date the
4-18 correction was made, the department may assess and collect an
4-19 administrative penalty for the subsequent violation. An
4-20 administrative penalty assessed under this subsection is equal to
4-21 three times the amount of the original penalty assessed but not
4-22 collected. The department is not required to provide the facility
4-23 with an opportunity under this section to correct the subsequent
4-24 violation.
4-25 Sec. 247.0453. REPORT RECOMMENDING ADMINISTRATIVE PENALTY.
4-26 (a) The department may issue a preliminary report stating the
4-27 facts on which the department concludes that a violation of this
5-1 chapter or a rule, standard, or order adopted under this chapter or
5-2 a term of a license issued under this chapter has occurred if the
5-3 department has:
5-4 (1) examined the possible violation and facts
5-5 surrounding the possible violation; and
5-6 (2) concluded that a violation has occurred.
5-7 (b) The report may recommend a penalty under Section
5-8 247.0451 and the amount of the penalty.
5-9 (c) The department shall give written notice of the report
5-10 to the person charged with the violation not later than the 10th
5-11 day after the date on which the report is issued. The notice must
5-12 include:
5-13 (1) a brief summary of the charges;
5-14 (2) a statement of the amount of penalty recommended;
5-15 (3) a statement of whether the violation is subject to
5-16 correction under Section 247.0452 and, if the violation is subject
5-17 to correction under that section, a statement of:
5-18 (A) the date on which the assisted living
5-19 facility must file with the department a plan of correction to be
5-20 approved by the department; and
5-21 (B) the date on which the plan of correction
5-22 must be completed to avoid assessment of the penalty; and
5-23 (4) a statement that the person charged has a right to
5-24 a hearing on the occurrence of the violation, the amount of the
5-25 penalty, or both.
5-26 (d) Not later than the 20th day after the date on which the
5-27 notice under Subsection (c) is sent, the person charged may:
6-1 (1) give to the department written consent to the
6-2 department's report, including the recommended penalty;
6-3 (2) make a written request for a hearing; or
6-4 (3) if the violation is subject to correction under
6-5 Section 247.0452, submit a plan of correction to the department for
6-6 approval.
6-7 (e) If the violation is subject to correction under Section
6-8 247.0452, and the person reports to the department that the
6-9 violation has been corrected, the department shall inspect the
6-10 correction or take any other step necessary to confirm the
6-11 correction and shall notify the person that:
6-12 (1) the correction is satisfactory and a penalty will
6-13 not be assessed; or
6-14 (2) the correction is not satisfactory and a penalty
6-15 is recommended.
6-16 (f) Not later than the 20th day after the date on which a
6-17 notice under Subsection (e)(2) is sent, the person charged may:
6-18 (1) give to the department written consent to the
6-19 department's report, including the recommended penalty; or
6-20 (2) make a written request for a hearing.
6-21 (g) If the person charged with the violation consents to the
6-22 penalty recommended by the department or does not timely respond to
6-23 a notice sent under Subsection (c) or (e)(2), the commissioner or
6-24 the commissioner's designee shall assess the penalty recommended by
6-25 the department.
6-26 (h) If the commissioner or the commissioner's designee
6-27 assesses the recommended penalty, the department shall give written
7-1 notice to the person charged of the decision and the person shall
7-2 pay the penalty.
7-3 Sec. 247.0454. HEARING ON ADMINISTRATIVE PENALTY. (a) An
7-4 administrative law judge shall order a hearing and give notice of
7-5 the hearing if a person charged with a violation under Section
7-6 247.0451 timely requests a hearing.
7-7 (b) The hearing shall be held before an administrative law
7-8 judge.
7-9 (c) The administrative law judge shall make findings of fact
7-10 and conclusions of law and promptly issue to the commissioner a
7-11 written decision regarding the occurrence of a violation of this
7-12 chapter or a rule, standard, or order adopted under this chapter or
7-13 a term of a license issued under this chapter and a recommendation
7-14 regarding the amount of the proposed penalty if a penalty is
7-15 warranted.
7-16 (d) Based on the findings of fact and conclusions of law and
7-17 the recommendation of the administrative law judge, the
7-18 commissioner by order may:
7-19 (1) find that a violation has occurred and assess an
7-20 administrative penalty; or
7-21 (2) find that a violation has not occurred.
7-22 (e) Proceedings under this section are subject to Chapter
7-23 2001, Government Code.
7-24 Sec. 247.0455. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
7-25 INTEREST; REFUND. (a) The commissioner shall give notice of the
7-26 findings made under Section 247.0454(d) to the person charged. If
7-27 the commissioner finds that a violation has occurred, the
8-1 commissioner shall give to the person charged written notice of:
8-2 (1) the findings;
8-3 (2) the amount of the administrative penalty;
8-4 (3) the rate of interest payable with respect to the
8-5 penalty and the date on which interest begins to accrue;
8-6 (4) whether action under Section 247.0457 is required
8-7 in lieu of payment of all or part of the penalty; and
8-8 (5) the person's right to judicial review of the
8-9 commissioner's order.
8-10 (b) Not later than the 30th day after the date on which the
8-11 commissioner's order is final, the person charged with the penalty
8-12 shall:
8-13 (1) pay the full amount of the penalty; or
8-14 (2) file a petition for judicial review contesting the
8-15 occurrence of the violation, the amount of the penalty, the
8-16 department's dissatisfaction with efforts to correct the violation,
8-17 or any combination of these issues.
8-18 (c) Notwithstanding Subsection (b), the department may
8-19 permit the person to pay a penalty in installments or may require
8-20 the person to use all or part of the amount of the penalty in
8-21 accordance with Section 247.0457.
8-22 (d) If the person does not pay the penalty within the period
8-23 provided by Subsection (b) or in accordance with Subsection (c), if
8-24 applicable:
8-25 (1) the penalty is subject to interest; and
8-26 (2) the department may refer the matter to the
8-27 attorney general for collection of the penalty and interest.
9-1 (e) Interest under Subsection (d)(1) accrues:
9-2 (1) at a rate equal to the rate charged on loans to
9-3 depository institutions by the New York Federal Reserve Bank; and
9-4 (2) for the period beginning on the day after the date
9-5 on which the penalty becomes due and ending on the date the penalty
9-6 is paid.
9-7 (f) If the amount of the penalty is reduced or the
9-8 assessment of a penalty is not upheld on judicial review, the
9-9 commissioner shall:
9-10 (1) remit to the person charged the appropriate amount
9-11 of any penalty payment plus accrued interest; or
9-12 (2) execute a release of the supersedeas bond if one
9-13 has been posted.
9-14 (g) Accrued interest on amounts remitted by the commissioner
9-15 under Subsection (f)(1) shall be paid:
9-16 (1) at a rate equal to the rate charged on loans to
9-17 depository institutions by the New York Federal Reserve Bank; and
9-18 (2) for the period beginning on the date the penalty
9-19 is paid and ending on the date the penalty is remitted to the
9-20 person charged.
9-21 Sec. 247.0456. APPLICATION OF OTHER LAW. Except as provided
9-22 by Section 247.0451(a)(6) or 247.0452(c), the department may not
9-23 assess more than one monetary penalty under this chapter for a
9-24 violation arising out of the same act or failure to act. This
9-25 section does not prohibit the department from assessing a monetary
9-26 penalty under this chapter and a monetary penalty under Chapter 32,
9-27 Human Resources Code, if appropriate, for the same act or failure
10-1 to act.
10-2 Sec. 247.0457. AMELIORATION OF VIOLATION. In lieu of
10-3 ordering payment of an administrative penalty authorized by Section
10-4 247.0451, the commissioner may require a person subject to the
10-5 penalty to use, under the supervision of the department, all or
10-6 part of the amount of the penalty to ameliorate the violation or to
10-7 improve services, other than administrative services, in the
10-8 assisted living facility affected by the violation.
10-9 SECTION 4. Section 247.049(b), Health and Safety Code, is
10-10 amended to read as follows:
10-11 (b) Subsection (a) does not:
10-12 (1) bar the admission into evidence of department
10-13 reports or other documents in an enforcement action in which the
10-14 state or an agency or political subdivision of the state is a
10-15 party, including:
10-16 (A) an action seeking injunctive relief under
10-17 Section 247.044;
10-18 (B) an action seeking imposition of a civil
10-19 penalty under Section 247.045; [and]
10-20 (C) a contested case hearing involving denial,
10-21 suspension, or revocation of a license issued under this chapter;
10-22 and
10-23 (D) an action seeking imposition of an
10-24 administrative penalty under this subchapter;
10-25 (2) bar the admission into evidence of department
10-26 reports or other documents that are offered:
10-27 (A) to establish warning or notice to an
11-1 assisted living facility of a relevant department determination; or
11-2 (B) under any rule or evidentiary predicate of
11-3 the Texas Rules of Evidence;
11-4 (3) prohibit or limit the testimony of a department
11-5 employee, in accordance with the Texas Rules of Evidence, as to
11-6 observations, factual findings, conclusions, or determinations that
11-7 an assisted living facility violated a standard prescribed under
11-8 this chapter if the observations, factual findings, conclusions, or
11-9 determinations were made in the discharge of the employee's
11-10 official duties for the department; or
11-11 (4) prohibit or limit the use of department reports or
11-12 other documents in depositions or other forms of discovery
11-13 conducted in connection with a civil action if use of the reports
11-14 or other documents appears reasonably calculated to lead to the
11-15 discovery of admissible evidence.
11-16 SECTION 5. This Act takes effect September 1, 2001.