80R3382 MSE-D

By: Farabee H.B. No. 2808

A BILL TO BE ENTITLED

AN ACT

relating to the licensing of health care staffing agencies; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle G, Title 2, Health and Safety Code, is amended by adding Chapter 148 to read as follows: CHAPTER 148. HEALTH CARE STAFFING AGENCIES SUBCHAPTER A. GENERAL PROVISIONS

Sec. 148.001. DEFINITIONS. In this chapter:

(1) "Department" means the Department of State Health Services.

(2) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(3) "Health care facility" means a public or private hospital, skilled nursing facility, intermediate care facility, ambulatory surgical facility, family planning clinic that performs ambulatory surgical procedures, rural or urban health initiative clinic, kidney disease treatment facility, inpatient rehabilitation facility, the office of a physician or practitioner of the healing arts practicing individually or in a group, and any other facility designated a health care facility by federal law.

(4) "Health care staffing agency" means a person who places temporary health care personnel at a health care facility or any other business that provides health care services to the public. [Sections 148.002-148.050 reserved for expansion] SUBCHAPTER B. LICENSING

Sec. 148.051. LICENSE REQUIRED. A person may not operate a health care staffing agency unless the person holds a license issued by the department.

Sec. 148.052. LICENSE APPLICATION. An applicant for a license under this chapter must submit to the department:

(1) a written application on a form prescribed by the department; and

(2) a license fee in an amount set by the department.

Sec. 148.053. ELIGIBILITY REQUIREMENTS. The executive commissioner shall adopt rules regarding the eligibility of an applicant for a license under this chapter. Rules adopted under this section must require a license applicant to:

(1) maintain general and professional liability insurance in an amount specified by the rules and workers' compensation coverage for the applicant's employees; and

(2) be accredited by a nationally recognized accrediting authority approved by the executive commissioner.

Sec. 148.054. LICENSE RENEWAL. (a) The executive commissioner by rule may adopt a system under which licenses expire on various dates during the year.

(b) At least 30 days before the expiration of a person's license, the department shall send written notice of the impending license expiration to the person at the person's last known address according to the department's records.

(c) A person may renew the person's unexpired license by paying the required renewal fee to the department before the expiration date of the license.

(d) A person whose license has been expired for 90 days or less may renew the license by paying to the department a fee equal to 1-1/2 times the required renewal fee. If a license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the department a fee equal to two times the required renewal fee.

(e) If a person's license has been expired for one year or longer, the person may not renew the license. The person may obtain a new license by complying with the requirements and procedures for obtaining an original license.

Sec. 148.055. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. The department may deny a license application or suspend or revoke the license of a person who fails to comply with the rules or standards for licensing required by this chapter. [Sections 148.056-148.100 reserved for expansion] SUBCHAPTER C. PENALTIES AND ENFORCEMENT PROVISIONS

Sec. 148.101. CIVIL PENALTY; INJUNCTION. (a) If, after actual notice has been given to a person and the person has been given a reasonable time to correct the violation, it appears that a person has continued to violate or is violating this chapter or an order issued or a rule adopted under this chapter, the department may ask the attorney general, the district or county attorney, or the municipal attorney of a municipality in the jurisdiction in which the violation is alleged to have occurred or may occur to institute an action for:

(1) a permanent or temporary injunction, temporary restraining order, or other appropriate remedy if the department shows that the person has engaged in or is engaging in a violation;

(2) the assessment and recovery of a civil penalty; or

(3) both injunctive relief and a civil penalty.

(b) A civil penalty may be not more than $5,000 a day for each violation. Each day the violation occurs constitutes a separate violation for the purposes of the assessment of a civil penalty.

(c) Venue for a suit brought under this section is the municipality or county in which the violation occurred or in Travis County.

(d) A civil penalty recovered in an action instituted by a local government under this section shall be paid to the local government.

(e) The executive commissioner or the attorney general may each recover reasonable expenses incurred in obtaining injunctive relief or a civil penalty under this section, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses. The expenses recovered by the executive commissioner under this section shall be used for the administration and enforcement of this chapter. The expenses recovered by the attorney general shall be used by the attorney general.

Sec. 148.102. EMERGENCY ORDER. (a) The executive commissioner or the executive commissioner's designee may issue an emergency order relating to the operation of a health care staffing agency in the department's jurisdiction if the executive commissioner or the executive commissioner's designee determines that:

(1) operation of the health care staffing agency creates or poses an immediate and serious threat to human life or health; and

(2) other procedures available to the department to remedy or prevent the threat will result in unreasonable delay.

(b) The executive commissioner or the executive commissioner's designee may issue an emergency order without notice or a hearing if the executive commissioner or the designee determines notice or a hearing is not practical under the circumstances.

(c) If an emergency order is issued without a hearing, the department shall determine a time and place for a hearing at which the emergency order is affirmed, modified, or set aside. The hearing shall be held under rules of the department. [Sections 148.103-148.150 reserved for expansion] SUBCHAPTER D. ADMINISTRATIVE PENALTY

Sec. 148.151. IMPOSITION OF ADMINISTRATIVE PENALTY. The department may impose an administrative penalty on a person licensed under this chapter who violates this chapter or a rule or order adopted under this chapter.

Sec. 148.152. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount of the administrative penalty may be not more than $5,000 for each violation. Each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty.

(b) The amount shall be based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) the economic harm caused by the violation;

(3) the history of previous violations;

(4) the amount necessary to deter a future violation;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

Sec. 148.153. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) If the executive commissioner or the executive commissioner's designee determines that a violation occurred, the executive commissioner or the designee may issue to the department a report stating:

(1) the facts on which the determination is based; and

(2) the executive commissioner's or the designee's recommendation on the imposition of an administrative penalty, including a recommendation on the amount of the penalty.

(b) Not later than the 14th day after the date the report is issued, the executive commissioner or the executive commissioner's designee shall give written notice of the report to the person. The notice must:

(1) include a brief summary of the alleged violation;

(2) state the amount of the recommended administrative penalty; and

(3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

Sec. 148.154. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 10th day after the date the person receives the notice, the person in writing may:

(1) accept the determination and recommended administrative penalty of the executive commissioner or the executive commissioner's designee; or

(2) make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(b) If the person accepts the determination and recommended penalty of the executive commissioner or the executive commissioner's designee, the department by order shall approve the determination and impose the recommended penalty.

Sec. 148.155. HEARING. (a) If the person requests a hearing or fails to respond in a timely manner to the notice, the executive commissioner or the executive commissioner's designee shall set a hearing and give written notice of the hearing to the person.

(b) An administrative law judge of the State Office of Administrative Hearings shall hold the hearing.

(c) The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the department a proposal for a decision about the occurrence of the violation and the amount of a proposed administrative penalty.

Sec. 148.156. DECISION BY DEPARTMENT. (a) Based on the findings of fact, conclusions of law, and proposal for decision, the department by order may determine that:

(1) a violation occurred and impose an administrative penalty; or

(2) a violation did not occur.

(b) The notice of the department's order given to the person must include a statement of the right of the person to judicial review of the order.

Sec. 148.157. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the department's order becomes final, the person shall:

(1) pay the administrative penalty; or

(2) file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.

(b) Within the 30-day period prescribed by Subsection (a), a person who files a petition for judicial review may:

(1) stay enforcement of the penalty by:

(A) paying the penalty to the court for placement in an escrow account; or

(B) giving the court a supersedeas bond approved by the court that:

(i) is for the amount of the penalty; and

(ii) is effective until all judicial review of the department's 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 penalty and is financially unable to give the supersedeas bond; and

(B) giving a copy of the affidavit to the executive commissioner or the executive commissioner's designee by certified mail.

(c) If the executive commissioner or the executive commissioner's designee receives a copy of an affidavit under Subsection (b)(2), the executive commissioner or the designee may file with the court, not later than the fifth day after the date the copy is received, a contest to the affidavit.

(d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond.

Sec. 148.158. COLLECTION OF PENALTY. (a) If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the penalty may be collected.

(b) The attorney general may sue to collect the penalty.

Sec. 148.159. DETERMINATION BY COURT. (a) If the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount of the penalty.

(b) If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.

Sec. 148.160. REMITTANCE OF PENALTY AND INTEREST. (a) If the person paid the administrative penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount plus accrued interest be remitted to the person.

(b) The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.

(c) The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

(d) If the person gave a supersedeas bond and the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, the release of the bond.

(e) If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount.

Sec. 148.161. ADMINISTRATIVE PROCEDURE. A proceeding under this subchapter is a contested case under Chapter 2001, Government Code.

SECTION 2. (a) Not later than September 1, 2008, a health care staffing agency in operation on the effective date of this Act must obtain a license as required by Chapter 148, Health and Safety Code, as added by this Act.

(b) Not later than March 1, 2008, the executive commissioner of the Health and Human Services Commission shall adopt rules as required by Chapter 148, Health and Safety Code, as added by this Act.

SECTION 3. This Act takes effect September 1, 2007, except that Subchapters C and D, Chapter 148, Health and Safety Code, as added by this Act, take effect March 1, 2008.