HBA-KMH S.B. 1249 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1249 By: Nelson Public Health 4/30/1999 Engrossed BACKGROUND AND PURPOSE Currently, state law does not provide for routine licensing inspections of ambulatory surgical centers. In addition, the Texas Department of Health (TDH) does not have the authority to assess administrative penalties against or pursue emergency suspensions of ambulatory surgical centers. S.B. 2639 subjects licensed ambulatory surgical centers to licensing inspections every three years and authorizes TDH to assess administrative penalties against and order emergency suspensions of ambulatory surgical 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 243.006(b), Health and Safety Code, to provide that a licensed ambulatory surgical center is subject to an on-site licensing inspection under this chapter once every three years while the center maintains the certification. Previously, such a center was not subject to additional licensing inspections while the center maintained certification. SECTION 2. Amends Chapter 243, Health and Safety Code, by adding Sections 243.0115, 243.015, 243.016, 243.017, 243.018, 243.019, and 243.020, as follows: Sec. 243.0115. EMERGENCY SUSPENSION. Authorizes the Texas Department of Health (TDH) to issue an emergency order to suspend the license of an ambulatory surgical center if TDH has reasonable cause to believe that the conduct of a license holder creates an immediate danger to the public health and safety. Provides that an emergency suspension is effective immediately without a hearing or notice to the license holder. Requires TDH to hold a hearing between the 10th and 30th day after receipt of the written request of the license holder to determine if the emergency suspension is to be continued, modified, or rescinded.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. 243.015. ADMINISTRATIVE PENALTY. Authorizes TDH to assess an administrative penalty against a person who violates this chapter or a rule adopted under this chapter. Prohibits the penalty from exceeding $1,000 per violation. Requires TDH to consider the seriousness of the violation, the history of previous violations, the amount necessary to deter future violations, efforts made to correct the violation, and any other matter that justice may require in determining the amount of the penalty. Provides that all proceedings for the assessment of an administrative penalty under this chapter are considered to be contested cases. Sec. 243.016. NOTICE; REQUEST FOR HEARING. Requires TDH to give written notice of a violation TDH has determined to have occurred to the person alleged to have committed the violation. Sets forth the required contents of the notice. Authorizes the person notified to accept the determination of TDH, including the penalty, or make a written request for a hearing within 20 days of receiving the notice. Requires the commissioner of 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 accepts the determination of TDH. Sec. 243.017. HEARING; ORDER. Requires TDH, if the person notified fails to respond to the notice or if the person requests a hearing, to set a hearing, give written notice of the hearing to the person, and designate a hearings examiner. Requires the hearings 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 recommendation as to the amount of the proposed penalty. Authorizes the commissioner or the commissioner's designee by order to find that a violation has occurred and assess a penalty or find that no violation has occurred based on the findings of fact and conclusions of law and the recommendations of the hearings examiner. Sec. 243.018. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL REVIEW; REFUND. (a) Requires TDH to give notice of the order to the person notified. Sets forth the information the notice must include. (b) Requires the person, within 30 days of the decision, to pay the penalty, pay the penalty and file a petition for judicial review contesting the occurrence of the violation or the amount of the penalty or both, or file such a petition for judicial review without paying the penalty. (c) Authorizes a person who files such a petition for judicial review without paying the penalty to either stay an enforcement of the penalty by paying the penalty to the court for placement in an escrow account or giving the court a supersedeas bond for the amount of the penalty that is effective until all judicial review of the order is final or request the court to stay enforcement of the penalty by filing with the court a sworn affidavit stating financial inability to pay the penalty or give a supersedeas bond and giving a copy of the affidavit to TDH by certified mail. (d) Authorizes TDH to file with the court a contest to such an affidavit within five days of receipt of 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 of finding that the alleged facts are true. Provides that the burden of proving financial inability to pay the penalty or give a supersedeas bond lies with the person who files the affidavit. (e) Authorizes TDH to refer the matter to the attorney general for collection of the penalty if the person does not pay the penalty 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 amount of the penalty and order the person to pay the full or reduced amount of the penalty if the court sustains the occurrence of the violation. Requires the court to order that no penalty is owned if the court does not sustain the occurrence of the violation. (h) Sets forth the procedures the court is required to follow when the judgment of the court becomes final. Sec. 243.019. 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. 243.020. RECOVERY OF COSTS. (a) Authorizes TDH to assess reasonable expenses and costs against a person in an administrative hearing if the person's license is denied, suspended, or revoked or if administrative penalties are assessed against the person as a result of the hearing. Requires the person to pay such expenses and costs within 30 days or the order to do so. 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 or to enforce a penalty and an injunction is granted against the person or the person is found liable for the penalty. (c) Defines "reasonable expenses and costs" 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 ambulatory surgical center penalty account. Authorizes that money in the account be appropriated only to TDH to administer this chapter. Provides that Section 403.095(Use of Dedicated Revenue), Government Code, does not apply to the account. SECTION 3. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 4. Emergency clause.