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.