HBA-MPM C.S.S.B. 1232 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 1232 By: Nelson Public Health 5/7/1999 Committee Report (Substituted) 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. C.S.S.B. 1232 amends the Texas Birthing Center Licensing 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. Requires the birthing center to be liable for the cost of the monitor. 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 and 244.0115, 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suspension is sent to the license holder to determine if the suspension is to take effect, to be modified, or to be rescinded.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. SECTION 4. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 5. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B 1232 differs from the original in SECTION 3 by adding to Chapter 244, Health and Safety Code, Sections 244.0105 and 244.0115, whereas the original added those sections and 244.015-020. Please find below the titles of the deleted sections, along with a summary of their content. Sec. 244.015. ADMINISTRATIVE PENALTY. Authorizes TDH to assess an administrative penalty, and to consider certain factors when determining the amount of the penalty. Provides that all proceedings for the assessment of a penalty are considered contested cases. Sec. 244.016. NOTICE; REQUEST FOR HEARING. Sets forth the protocol for TDH and a person who has received written notice of an alleged violation under this section with respect to a hearing and the protocol for the person to either agree to pay an administrative penalty under the violation or to contest the violation. Sec. 244.017. HEARING; ORDER. Requires the department to follow certain procedures with respect to setting a hearing if the person notified fails to respond to a notice in a timely manner. Sets forth the protocol by which a hearings examiner makes findings of fact and conclusions of law with respect to the hearing, as well as specific actions the public health commissioner (commissioner) or commissioner's designee may take if it is determined that a violation has occurred, including assessing an administrative penalty. Sec. 244.018. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. Requires TDH to give notice of the order to the person notified and provides that the notice must include specific information with respect to the order. Sets forth the options for a person receiving notice under this section, i.e., paying the penalty, paying the penalty and filing a petition for judicial review contesting the occurrence of the violation, or filing the petition without paying the petition. Provides methods by which a person may stay enforcement of the penalty or request the court to stay enforcement of the penalty and authorizes TDH to take certain responsive action. Authorizes TDH to refer the matter of an unpaid penalty to the attorney general. Sets forth the process of judicial review under this section. Authorizes the court to takes certain actions with respect to assessing the penalty amount or to decide that no penalty is owed. Sets forth the court's protocol upon final judgment under this section with respect to the penalty, if it is determined that the person does not owe the penalty or must pay the full amount of the penalty. 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. Sets forth the method by which TDH may recover 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. Authorizes the attorney general to recover on behalf of the attorney general and TDH reasonable expenses and costs if an action is brought against the person or to enforce an administrative penalty. 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. The substitute further modifies SECTION 4 of the original to include a prospective clause.