HBA-MPM S.B. 1232 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1232
By: Nelson
Public Health
5/2/1999
Engrossed



BACKGROUND AND PURPOSE 

Currently, the Texas Department of Health (TDH) regulates birthing centers,
but does not have the authority to issue emergency suspensions, revoke a
license, use administrative penalties as an enforcement tool, or place a
monitor at the center's expense when compliance issues warrant such a move.
Lack of authority may prohibit TDH from intervening to protect the health
and well being of patients.  S.B. 1232 amends the Texas Birthing Center Act
to expand the enforcement tools available to TDH in the course of
regulating birthing centers.  

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 to ensure compliance with this chapter, if the center's failure to
comply creates a serious threat to the health and safety of the public. 

SECTION 2.  Amends Section 244.011(a), Health and Safety Code, to authorize
TDH to deny, suspend, or revoke a license for a history of continuing
noncompliance with this chapter or rules adopted under it. 

SECTION 3.  Amends Chapter 244, Health and Safety Code, by adding Sections
244.0105, 244.0115 and 244.015-244.020, as follows: 

Sec. 244.0105.  COMPLAINTS.  Authorizes a person to file a complaint with
TDH against a birthing center licensed under this chapter.  Provides that a
person filing a false complaint may be prosecuted under the Penal Code. 

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 a license holder's conduct creates an immediate
danger to the public health and safety. Requires TDH, on written request of
the license holder, to conduct a hearing no earlier than the seventh day or
later than the 10th day after notice of the emergency suspension is sent to
the license holder to determine if the suspension is to take effect, to be
modified, or to be rescinded.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.  Authorizes TDH to assess an
administrative penalty, not to exceed $1,000 per violation, against a
person who violates this chapter or a rule adopted under it.  Requires TDH
to consider certain factors with respect to the violation when determining
the penalty amount.  Provides that all proceedings for the assessment of a
penalty are considered contested cases under Chapter 2001, Government Code. 

Sec. 244.016.  NOTICE; REQUEST FOR HEARING.  (a)  Requires TDH to give
written  notice of a violation to a person alleged to have committed the
violation if, after an investigation, TDH determines a violation has
occurred.  Requires the notice to include certain information with respect
to the violation. 

(b)  Authorizes a person notified to accept TDH's determination made under
this section including the proposed penalty, or to make a written request
for a hearing no later than the 20th day after receiving the notice. 

(c) Requires the commissioner of health (commissioner) or 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 the department to follow
certain procedures with respect to setting a hearing if the person notified
fails to response in a timely manner to the notice under Section 244.016,
Health and Safety Code. 

(b) Requires the hearings examiner to make findings of fact and conclusions
of law and to promptly issue to the commissioner or commissioner's designee
a proposal for decision as to the occurrence of the violation and a
recommendation as to the amount of the proposed penalty if one is
determined to be warranted. 

(c)  Authorizes the commissioner or commissioner's designee, based on
findings of fact and conclusions of law, by order, to find that a violation
has occurred and to assess a penalty or to find that no violation has
occurred. 

Sec. 244.018.  HEARING 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 specific information with respect to
the order. 

(b)  Requires the person, no later than the 30th day after the decision is
final as provided by Chapter 2001, Government Code, to: 

_pay the penalty;
_pay the penalty and file a petition for judicial review contesting the
occurrence of the violation, the penalty amount, or both; or 
_file a petition for judicial review contesting the occurrence of the
violation, the penalty amount, or both, without paying the penalty. 

(c)  Authorizes a person acting under Subsection (b), within a 30-day
period, to: 

_stay enforcement of the penalty by paying it to the court for placement in
escrow or giving the court a supersedeas bond for the penalty amount which
is effective until the order is final; or 
_request the court to stay enforcement of the penalty by filing a sworn
affidavit of the person stating the person's financial inability to pay the
penalty amount or to give the supersedeas bond and giving a copy of the
affidavit to TDH 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 receipt of the copy, 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.
Provides that the person filing the affidavit has the burden of proof 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 a penalty if the person does not pay the penalty and the
enforcement of it 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, 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 amount if the court sustains
the occurrence of the violation. Requires the court to order that no
penalty is owed if it does not sustain the occurrence of the violation. 

(h) Requires the court upon final judgment to proceed under this
subsection.  Requires the court to order that TDH pay the appropriate
penalty amount plus accrued interest to a person if the person paid a
penalty amount under Subsection (b) and that amount is reduced or not
upheld by the court.  Provides that the interest rate is that charged on
loans to depository institutions by the New York Federal Reserve Bank.
Requires the interest to be paid for the period beginning on the date the
penalty was paid and ending the date the penalty is remitted.  Requires the
court to order the release of an escrow account or bond, if the person paid
the penalty under Subsection (c) or gave a supersedeas bond and if the
penalty amount is not upheld by the court.  Requires the court to order
that the penalty amount 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 a person pays a penalty amount, if the
person gave a supersedeas bond and 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 it
results in the person's licensing being 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 the commissioner's
designee requiring the payment of expenses and costs is final.  Authorizes
TDH to refer the matter to the attorney general for collection. 

(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 or 244.014 or to
enforce an administrative penalty assessed under Section 244.015, and an
injunction is granted against the person or the person is found liable for
the penalty. 

(c)  Defines "reasonable 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 to administer this chapter.  Makes Section 403.095 (Use of Dedicated
Revenue), Government Code, inapplicable to the account. 

SECTION 4.  Effective date:  September 1, 1999.

SECTION 5.  Emergency clause.