HBA-JRA C.S.S.B. 200 76(R) BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 200 By: Moncrief Human Services 5/16/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, the enforcement remedies in the personal care facility statute may not adequately protect residents in assisted living facilities. Under current law, the state must choose between completely closing down a facility at the inconvenience of its residents, or letting the facility continue to operate without any enforcement action. C.S.S.B. 200 increases the state's enforcement choices by creating provisions for the assessment and determination of violations and penalties for personal care facilities. 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 247.002, Health and Safety Code, by adding Subdivision (6), to define "commissioner." SECTION 2. Amends Chapter 247C, Health and Safety Code, by adding Sections 247.0451247.0457, as follows: Sec. 247.0451. ADMINISTRATIVE PENALTY. (a) Authorizes the Texas Department of Human Services (department), to assess an administrative penalty against a person who violates this chapter or a rule, standard, or order adopted or license issued under this chapter; makes a false statement, that the person knows or should know is false, of a material fact on an application or with respect to a matter under investigation by the department; refuses to allow a representative of the department to inspect required records or files or the premises of a personal care facility; willfully interferes with the work of a department representative or the enforcement of this chapter; willfully interferes with a department representative preserving evidence of a violation; or fails to pay a penalty within 30 days after the date the assessment of the penalty becomes final. (b) Prohibits the penalty from exceeding $5,000 for each violation, except as provided by Subsection (d). (c) Requires notice of any violation observed by a department representative during an inspection that results in a recommendation of an administrative penalty to be provided in writing to the personal care facility, identify the specific law or regulation that has been violated, and include the name of the department representative recommending the penalty. (d) Prohibits the penalty for a violation of a right of a resident from exceeding $1,000 for each violation. Provides that this subsection does not apply to conduct that also violates another provision in this chapter or a rule, standard, or order adopted or license issued under this chapter. (e) Requires the Texas Board of Human Services (board) to establish gradations of penalties in accordance with the relative seriousness of the violation. (f) Sets forth factors the department is required to consider in determining the amount of a penalty. (g) Provides that a penalty assessed for failure to timely pay a penalty is in addition to previous penalties. Sec. 247.0452. RIGHT TO CORRECT. Prohibits the department from collecting a penalty if the personal care facility (facility) corrects the violation within 45 days of receiving notice of the violation. Sets forth circumstances in which this time limit does not apply. Sec. 247.0453. REPORT RECOMMENDING ADMINISTRATIVE PENALTY. (a) Authorizes the department to issue a preliminary report of facts determining a violation if it has examined the possible violation and facts surrounding the possible violation and concluded that a violation has occurred. (b) Authorizes the report to recommend a penalty and the amount of the penalty. (c) Requires the department to give the alleged violator written notice by the 10th day after issuance of the report. Sets forth information which must be included in the notice. (d) Authorizes the alleged violator to consent in writing to the department's report, make a written request for a hearing, or submit a plan of correction to the department of approval, if appropriate, by the 20th day after such notice is sent. (e) Requires the department, if the violation is subject to correction, to inspect and confirm reported corrections, and to notify the alleged violator of the result of the inspection. (f) Authorizes the alleged violator to consent in writing to the department's report or make a written request for a hearing by the 20th day after notice that the correction is not satisfactory is sent. (g) Requires the commissioner of human services (commissioner) to assess a penalty if the alleged violator consents to the penalty or does not timely respond to a notice. (h) Requires the department to give written notification to the violator of the commissioner's decision to assess a penalty. Requires the violator to pay the penalty. Sec. 247.0454. HEARING ON ADMINISTRATIVE PENALTY. Requires an administrative law judge (judge) to order and give notice of a hearing if the alleged violator makes a timely request for such a hearing. Requires the hearing to be held before the judge. Requires the judge to promptly issue to the commissioner a written decision and potential penalty recommendation. Authorizes the commissioner to, based on the conclusions and recommendation of the judge, find that a violation has occurred and assess an administrative penalty or find that a violation has not occurred. Provides that proceedings under this section are subject to Chapter 2001, Government Code. Sec. 247.0455. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY; INTEREST; REFUND. (a) Requires the commissioner to give the alleged violator notice of the findings made under Section 247.0454, and if the commissioner finds that a violation has occurred, notice of the findings, the amount of the administrative penalty, the interest rate and the date on which interest begins to accrue, whether action is required in lieu of payment of all or part of the penalty, and the person's right to judicial review of the commissioner's order. (b) Requires the violator to pay the full amount of the penalty or file a petition for judicial review contesting the occurrence the violation, the amount of the penalty, the failure to correct the violation to the department's satisfaction, or any combination of these issues by the 30th day after the commissioner's order is final. (c) Authorizes the department to permit certain penalty payment procedures. (d) Sets forth further penalties if the violator does not pay the penalty within a certain time frame. (e) Sets forth the accrual rate of interest on a penalty. (f) Requires the commissioner to remit to the violator the appropriate amount of any penalty payment plus accrued interest or execute a release of the supersedeas bond if one has been posted if a penalty is reduced or not assessed. (g) Sets forth required accrued interest payment procedures. Sec. 247.0456. APPLICATION OF OTHER LAW. Prohibits the department from assessing multiple penalties under this chapter for the same violation, except as provided by Section 247.0451(a)(6). Sec. 247.0457. AMELIORATION OF VIOLATION. Authorizes the commissioner to require a person subject to the penalty to use, under the supervision of the department, all or part of the amount of the penalty to ameliorate the violation or to improve services, other than administrative services, in the personal care facility affected by the violation. SECTION 3.Effective date: September 1, 1999. SECTION 4.Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies the original in SECTION 2, in proposed Section 247.0451(a), to authorize the Texas Department of Human Services (department), to assess an administrative penalty against a person who fails to pay a penalty within 30 days, rather than 10 days, after the date the assessment of the penalty becomes final. In proposed Subsection (c), the substitute requires notice to be provided in writing of any violation observed by a department representative during an inspection that results in a recommendation of an administrative penalty, rather than of any violation that results in the assessment of an administrative penalty. In proposed Subsection (f), the substitute requires the department to consider the size of the personal care facility in determining the amount of the penalty and makes conforming changes. The substitute deletes proposed Section 247.0452(c), which required a facility to maintain corrections and provided ultimatums for failure to do so and established that the department is not obliged to give the facility an opportunity to correct subsequent violations. In proposed Section 247.0456, the substitute deletes the provision that this section does not prohibit the department from assessing a monetary penalty under this chapter and a monetary penalty under Chapter 32, Human Resources Code, if appropriate, for the same act or failure to act.