HBA-MPM H.B. 2517 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2517 By: Capelo Public Health 3/23/1999 Introduced BACKGROUND AND PURPOSE The Texas Birthing Center Licensing Act, enacted in 1985, has not been updated since that time. The Texas Department of Health (TDH) adopted rules in October, 1996 to implement the Act, and adopted new rules effective February, 1998 to address areas of concern jointly identified by the department and the Birthing Center Ad Hoc Rules Committee. Amending the statute would allow for the inclusion of regulatory provisions which have become standard in other licensing statutes and which are also appropriate to address problems identified in the regulation of birthing centers. H.B. 2517 amends the Texas Birthing Center Licensing Act to expand the enforcement tools available to TDH in the course of regulating birthing centers. This bill also allows for the assessment of administrative penalties for acts of noncompliance, authorizes the use of monitors by TDH, and authorizes TDH to deny, suspend, or revoke a license in certain instances. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 244.006, Health and Safety Code, to authorize the Texas Department of Health (TDH) to appoint a monitor for a birthing center (center) to ensure compliance with this chapter, if the center is not in compliance. Requires the center to be liable for the cost of the monitor. SECTION 2. Amends Section 244.011(a), Health and Safety Code, to include a history of noncompliance with this chapter or the rules adopted under it as one of the reasons TDH may deny, suspend, or revoke a license. SECTION 3. Amends Chapter 244, Health and Safety Code, by adding Sections 244.0115, 244.015, 244.016, 244.017, 244.018, 244.019, and 244.020, as follows: Sec. 244.0115. EMERGENCY SUSPENSION. Authorizes TDH to issue an emergency order to suspend a license issued under this chapter if it has reasonable cause to believe that the conduct of a license holder creates a threat to the public health and safety. Provides that an emergency suspension is effective immediately without a hearing on notice to the license holder. Requires TDH, on written request of a license holder, to conduct a hearing no earlier than the 10th day or later than the 30th day after a hearing request is received to determine if the emergency suspension is to be continued, modified, or rescinded. Provides that the hearing and any appeal are governed by TDH's rules for a contested case hearing and Chapter 2001 (Administrative Procedure), Government Code. Sec. 244.015. ADMINISTRATIVE PENALTY. (a) Authorizes TDH to assess an administrative penalty against a person in violation of this chapter or a rule adopted under it. (b) Prohibits the penalty from exceeding $1,000 or each violation. Provides that each day of a continuing violation constitutes a separate violation. (c) Requires TDH, in determining the amount of the penalty, to consider certain factors. (d) Provides that all proceedings for the assessment of a penalty under this chapter are considered to be contested cases under Chapter 2001, Government Code. Sec. 244.016. NOTICE; REQUEST FOR HEARING. (a) Requires TDH, if, after investigation of a possible violation and the facts surrounding it and determination that a violation has occurred, to give written notice of the violation to the person alleged to have committed the violation. Requires the notice to include certain information. (b) Authorizes the person to notified accept TDH's determination made under this section, including the proposed penalty, or to make a written request for a hearing on that determination no later than the 20th day after the notice is received. (c) Requires the commissioner of public health (commissioner) or the commissioner's designee to issue an order approving the determination and ordering the person to pay the proposed penalty if the person notified of the violation accepts TDH's determination. Sec. 244.017. HEARING; ORDER. (a) Requires TDH, if the person notified requests a hearing, to set the hearing, give written notice of the hearing to the person, and designate a hearings examiner (examiner) to conduct the hearing. (b) Requires the examiner to make findings of fact and conclusions of law and to promptly issue to the commissioner or the commissioner's designee a proposal for decision as to the occurrence of the violation and to recommend a proposed penalty amount, if warranted. (c) Authorizes the commissioner or commissioner's designee, by order, to find that a violation has occurred and to assess a penalty or to find that no violation has occurred based on the findings of fact and conclusions of law and recommendations of the examiner. Sec. 244.018. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. (a) Requires TDH to give notice of the order under Section 244.017(c), Health and Safety Code, to the person notified. Provides that the notice must include certain information. (b) Requires the person, no later than the 30th day after the decision is final as provided by Chapter 2001, Government Code, to: (1) pay the penalty; (2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the penalty amount, or both the occurrence of the violation and penalty amount; or (3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the penalty amount, or both the occurrence of the violation and penalty amount. (c) Authorizes a person acting under Subsection (b)(3), within a 30-day period, to stay enforcement of the penalty by paying the penalty to the court for placement in escrow; or giving a supersedeas bond to the court that is approved by the court for the penalty amount and that is effective until all judicial review of the order is final. Authorizes the person to optionally request the court to stay enforcement of the penalty by filing with the court a sworn affidavit stating that the person is financially unable to pay the penalty amount and is financially unable to give the supersedeas bond; and giving a copy of the affidavit to the department by certified mail. (d) Authorizes TDH, if it receives a copy of an affidavit under Subsection (c), to file with the court, within five days after the copy is received, a contest to the affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable and to stay the enforcement of the penalty on finding that the alleged facts are true. Specifies that 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. (e) Authorizes TDH to refer the matter to the attorney general for collection of the penalty if the person does not pay it and the enforcement of the penalty is not stayed. (f) Provides that judicial review of the order is instituted by filing a petition as provided by Subchapter G (Contested Cases: Judicial Review), Chapter 2001 (Administrative Procedure), Government Code, and is under the substantial evidence rule. (g) Authorizes the court to uphold or reduce the penalty amount and order the person to pay the full or reduced penalty if the court sustains the occurrence of the violation. Authorizes the court to order that no penalty is owed if it does not sustain the occurrence of the violation. (h) Requires the court to proceed under this subsection after final judgment. Requires the court, if the person paid the penalty amount under Subsection (b)(2) and if that amount is reduced or not upheld, to order that TDH pay the appropriate amount plus accrued interest to the person. Provides that the rate of interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and requires the interest to be paid for the period beginning on the date the penalty was paid and ending on the date it is remitted. Requires the court to order the release of the escrow account or bond if the person paid the penalty under Subsection (c), or gave a supersedeas bond and if the amount of the penalty is not upheld. Requires the court to order the amount of the penalty be paid to TDH from the escrow account and that the remainder of the account be released if the person paid the penalty under Subsection (c) and the penalty amount is reduced. Requires the court to order the release of the bond after the person pays the amount if the person gave a supersedeas bond and if the penalty amount is reduced. Sec. 244.019. PENALTY DEPOSITED TO STATE TREASURY. Requires a civil or administrative penalty collected under this chapter to be deposited in the state treasury to the credit of the general revenue fund. Sec. 244.020. RECOVERY OF COSTS. (a) Authorizes TDH to assess reasonable expenses and costs against a person in an administrative hearing if, as a result of that hearing, the person's license is denied, suspended, or revoked, or if administrative penalties are assessed against the person. Requires the person to pay expenses and costs assessed under this subsection no later than the 30th day after the order of the commissioner or commissioner's designee requiring the payment of expenses and costs is final. Authorizes TDH to refer the matter to the attorney general for collection of the expenses and costs. (b) Authorizes the attorney general to recover, on behalf of the attorney general and TDH, reasonable expenses and costs if the attorney general brings an action against a person under Section 244.012 (Injunction) or Section 244.014 (Civil Penalty), Health and Safety Code, or to enforce an administrative penalty assessed under Section 244.015, Health and Safety Code, and an injunction is granted against the person, or the person is found liable for a civil or administrative penalty. (c) Provides that "reasonable expenses and costs" include expenses incurred by TDH and the attorney general in the investigation, initiation, or prosecution of an action, including reasonable investigative costs, court costs, attorney's fees, witness fees, and deposition expenses, for purposes of this section. (d) Requires costs and expenses collected under this section to be deposited in the general revenue fund to the credit of the birthing center penalty account. Authorizes money in the account to be appropriated only to TDH and to administer this chapter. Makes Section 403.095 (Use of Dedicated Revenue), Government Code, inapplicable to this account. SECTION 4. Effective date: September 1, 1999. SECTION 5. Emergency clause.