By:  Kuempel                                                      H.B. No. 2919


A BILL TO BE ENTITLED
AN ACT
relating to Texas Cancer Registry data use fees and cost recovery procedures and penalties for failure to furnish required data to the Registry. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 82.008(f), Chapter 82, 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 this cost recovery and late fee, the department may pursue penalties under Sections 82.21-82.29 of this Chapter. SECTION 2. Amend Chapter 82, Health and Safety Code, by adding new Sections 82.21-82.29 to read as follows: Sec. 82.21. IMPOSITION OF ADMINISTRATIVE PENALTY. After 60 days of violation of this Chapter, the department may impose an administrative penalty on a person, other than a health care practitioner, who violates this chapter or a rule adopted or order issued under this chapter. Sec. 82.22. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000 a day for each violation. Each day a violation continues may be considered a separate violation for purposes of imposing a penalty. (b) In determining the amount of the penalty, the department shall consider: (1) the seriousness of the violation; (2) the person's history of previous violations; and (3) any other matter that justice may require. Sec. 82.23. OPPORTUNITY FOR HEARING; ORDER. (a) The department may impose an administrative penalty under this subchapter 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 issue a written decision as to: (1) the occurrence of the violation; and (2) the amount of any penalty that is warranted. (c) If the person charged with a violation fails to exercise the opportunity for a hearing, the department, after determining that a violation occurred and the amount of the penalty that is warranted, may impose a penalty and shall issue an order requiring the person to pay any penalty imposed. (d) Not later than the 30th day after the date an order is issued after determining that a violation occurred, the department shall inform the person charged with the violation of the amount of any penalty imposed. (e) The department may consolidate a hearing under this section with another proceeding. Sec. 82.24. OPTIONS FOLLOWING DECISION; PAY OR APPEAL. (a) Not later than the 30th day after the date the department's decision or order becomes final as provided by Section 2001.144, Government Code, the person shall: (1) pay the administrative penalty; or (2) file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both. (b) Within the 30-day period, a person who acts under Subsection (a)(2) may stay enforcement of the penalty by: (1) paying the penalty to the department for placement in an escrow account; or (2) giving the department a bond in a form approved by the department that: (A) is for the amount of the penalty; and (B) is effective until judicial review of the department's decision or order is final. Sec. 82.25. COLLECTION OF PENALTY. At the request of the department, the attorney general may bring a civil action to recover an administrative penalty imposed under this subchapter. Sec. 82.26. 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. 82.27. REMITTANCE OF PENALTY AND INTEREST OR RELEASE OF BOND. If after judicial review the administrative penalty is reduced or is not upheld by the court, the department shall: (1) remit the appropriate amount, plus accrued interest, to the person not later than the 30th day after the date of the determination, if the person paid the penalty; or (2) execute a release of the bond, if the person gave a bond. Sec. 82.28. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The department may request the attorney general or the district, county, or city attorney having jurisdiction to bring a civil suit for injunctive relief, the assessment and recovery of a civil penalty, or both, against a person who appears to have violated, is violating, or is threatening to violate this chapter or a rule adopted or order issued under this chapter; or (b) A civil penalty may not exceed $1,000 a day for each violation. Each day a violation occurs or continues to occur is a separate violation for purposes of imposing a penalty. (c) In determining the amount of a civil penalty, the court shall consider: (1) the seriousness of the violation; (2) the person's history of 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. 82.29. USE OF FUNDS. All cost reimbursements, administrative penalties and civil penalties under Sections 82.21-82.28 shall be recovered in the name of the Department of State Health Services and shall be dedicated to the cancer registry free from all limitations on Full Time Equivalents (FTEs), capital expenditures and travel expenses set forth in the General Appropriations Act. SECTION 3. Amend Chapter 82, Health and Safety Code by adding new Section 82.012 to read as follows: Sec. 82.012. FEES FOR DATA PRODUCTS. (a) The cancer registry may impose reasonable fees for the provision of data linkages and data requests other than standard publications prepared for general distribution by the cancer registry. (b) Fees under this Section shall be adopted by rule. (c) All fees under this Section shall be collected in the name of the Department of State Health Services and shall be dedicated to the cancer registry free from all limitations on Full Time Equivalents (FTEs), capital expenditures and travel expenses set forth in the General Appropriations Act. SECTION 4. This Act takes effect September 1, 2005.