79R10075 UM-F
By: Kuempel H.B. No. 2919
Substitute the following for H.B. No. 2919:
By: Dawson C.S.H.B. No. 2919
A BILL TO BE ENTITLED
AN ACT
relating to creating administrative and civil penalties for the
failure to furnish data required for the Texas Cancer Registry.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 82.008(f), Health and Safety Code, is
amended to read as follows:
(f) A health care facility, clinical laboratory, or health
care practitioner that knowingly or in bad faith fails to furnish
data as required by this chapter shall reimburse the department or
its authorized representative for the costs of accessing and
reporting the data. The costs reimbursed under this subsection
must be reasonable, based on the actual costs incurred by the
department or by its authorized representative in the collection of
data under Subsection (d), and may include salary and travel
expenses. The department may assess a late fee on an account that
is 60 days or more overdue. The late fee may not exceed one and
one-half percent of the total amount due on the late account for
each month or portion of a month the account is not paid in full. A
health care facility, clinical laboratory, or health care
practitioner may request that the department conduct a hearing to
determine whether reimbursement to the department under this
subsection is appropriate. In addition to the fees authorized by
this section, the department may impose penalties authorized by
Sections 82.021-82.029.
SECTION 2. Chapter 82, Health and Safety Code, is amended by
adding Section 82.012 to read as follows:
Sec. 82.012. FEES FOR DATA PRODUCTS. (a) The department
may impose reasonable fees for the provision of data or access to
data in the cancer registry other than the provision of standard
publications prepared for general distribution.
(b) The executive commissioner of the Health and Human
Services Commission shall adopt rules regarding the amount of the
fees charged under this section.
(c) A fee collected under this section shall be deposited in
the state treasury in the name of the Department of State Health
Services and may be appropriated only to the department for the
purposes of the cancer registry. An appropriation from these
amounts is free from any limitation on full-time equivalents
(FTEs), capital expenditures, and travel expenses imposed by the
General Appropriations Act.
SECTION 3. Chapter 82, Health and Safety Code, is amended by
adding Sections 82.021-82.029 to read as follows:
Sec. 82.021. NOTICE OF VIOLATION. (a) If the department
determines that a person, other than a health care practitioner,
has failed to furnish data as required by this chapter or rules
adopted under this chapter, the department shall send a notice to
the person after the 30th day after the date the person was required
to furnish the data. The notice must state that the person has not
complied with this chapter and that the person may take corrective
action by furnishing the required data not later than the 60th day
after the date of the notice.
(b) If a person notified under Subsection (a) has not taken
corrective action before the 31st day after the date of the
department's initial notice, the department shall send a second
notice stating that the person has only 30 days remaining to take
corrective action.
Sec. 82.022. ADMINISTRATIVE PENALTY. (a) After complying
with Section 82.021, the department may assess an administrative
penalty if a person, other than a health care practitioner, fails to
furnish data required by this chapter or a rule adopted under this
chapter before the 91st day after the date the person is originally
required to furnish the data.
(b) In determining the amount of the penalty, the department
shall consider:
(1) the seriousness of the violation;
(2) the person's previous violations; and
(3) any other matter that justice may require.
(c) The penalty may not exceed $1,000 a day for each
violation.
(d) Each day a violation continues is a separate violation
for purposes of imposing a penalty.
Sec. 82.023. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
(a) The department may assess an administrative penalty only after
the person charged with a violation is given the opportunity for a
hearing.
(b) If a hearing is held, the department shall make findings
of fact and shall issue a written decision regarding the occurrence
of the violation and the amount of the penalty that may be
warranted.
(c) If the person charged with the violation does not
request a hearing, the department may assess a penalty after
determining that a violation occurred and the amount of the penalty
that is warranted.
(d) After making a determination under this section that a
penalty is to be assessed against a person, the department shall
issue an order requiring the person to pay the penalty.
(e) The department may consolidate a hearing under this
section with another proceeding.
Sec. 82.024. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
later than the 30th day after the date an order finding that a
violation has occurred is issued, the department shall inform the
person against whom the order is issued of the amount of the penalty
for the violation.
(b) Before the 31st day after the date on which a decision or
order charging a person with a penalty is final as provided by
Section 2001.144, Government Code, the person shall:
(1) pay the penalty in full; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both the
occurrence of the violation and the amount of the penalty.
(c) Within the 30-day period, a person who acts under
Subsection (b)(2) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(B) giving to the court a bond that is approved by
the court for the amount of the penalty and that is effective until
all judicial review of the order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the bond;
and
(B) giving a copy of the affidavit to the
department by certified mail.
Sec. 82.025. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
GENERAL. At the request of the department, the attorney general may
bring a civil action to recover an administrative penalty imposed
under this chapter.
Sec. 82.026. JUDICIAL REVIEW. Judicial review of a
decision or order of the department imposing a penalty under this
subchapter is instituted by filing a petition with a district court
in Travis County and is under the substantial evidence rule as
provided by Subchapter G, Chapter 2001, Government Code.
Sec. 82.027. REFUND OF ADMINISTRATIVE PENALTY. Not later
than the 30th day after the date of a judicial determination that an
administrative penalty against a person should be reduced or not
assessed, the department shall:
(1) remit to the person the appropriate amount of any
penalty payment plus accrued interest; or
(2) execute a release of the bond if the person has
posted a bond.
Sec. 82.028. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) At the
request of the department, the attorney general or a district,
county, or city attorney shall institute an action in district
court to:
(1) collect a civil penalty from a person who has
violated or is violating this chapter or a rule or order adopted
under this chapter; or
(2) obtain injunctive relief against a person who has
violated, is violating, or is threatening to violate this chapter
or a rule or order adopted under this chapter.
(b) A civil penalty may not exceed $1,000 a day for each
violation. Each day of violation constitutes a separate violation
for purposes of the penalty assessment.
(c) The court shall consider the following in determining
the amount of the penalty:
(1) the seriousness of the violation;
(2) the person's previous violations; and
(3) the demonstrated good faith of the person charged
with the violation.
(d) A civil penalty recovered in a suit instituted by the
attorney general under this chapter shall be deposited in the state
treasury.
Sec. 82.029. USE OF PENALTIES. An administrative penalty
or civil penalty collected under Sections 82.021-82.028 shall be
deposited in the state treasury in the name of the Department of
State Health Services and may be appropriated only to the
department for purposes of the cancer registry. An appropriation
from these amounts is free from any limitation on full-time
equivalents (FTEs), capital expenditures, and travel expenses
imposed by the General Appropriations Act.
SECTION 4. The change in law made by this Act applies only
to the furnishing of data under Chapter 82, Health and Safety Code,
or a rule adopted under that chapter that is originally required to
be furnished on or after the effective date of this Act. The
furnishing of data originally required to be furnished before the
effective date of this Act is governed by the law as it existed
immediately before that date, and that law is continued in effect
for that purpose.
SECTION 5. This Act takes effect September 1, 2005.