| (a) Assessment of an administrative penalty. HHSC may
assess an administrative penalty if a license holder:
(1) violates:
(A) Texas Health and Safety Code, Chapter 247;
(B) a rule, standard, or order adopted under Texas
Health and Safety Code, Chapter 247; or
(C) a term of a license issued under Texas Health and
Safety Code, Chapter 247;
(2) makes a false statement of material fact that the
license holder knows or should know is false:
(A) on an application for issuance or renewal of a
license;
(B) in an attachment to the application; or
(C) with respect to a matter under investigation by
HHSC;
(3) refuses to allow an HHSC representative to inspect:
(A) a book, record, or file that a facility must maintain;
or
(B) any portion of the premises of a facility;
(4) willfully interferes with the work of, or retaliates
against, an HHSC representative or the enforcement of this chapter;
(5) willfully interferes with, or retaliates against,
an HHSC representative preserving evidence of a violation of Texas
Health and Safety Code, Chapter 247; a rule, standard, or order adopted
under Texas Health and Safety Code, Chapter 247; or a term of a license
issued under Texas Health and Safety Code, Chapter 247;
(6) fails to pay an administrative penalty not later
than the 30th calendar day after the penalty assessment becomes final;
(7) fails to notify HHSC of a change of ownership before
the effective date of the change of ownership;
(8) willfully interferes with the State Ombudsman,
a certified ombudsman, or an ombudsman intern performing the functions
of the Ombudsman Program as described in Chapter 88 of this title
(relating to State Long-Term Care Ombudsman Program); or
(9) retaliates against the State Ombudsman, a certified
ombudsman, or an ombudsman intern:
(A) with respect to a resident, employee of a facility,
or other person filing a complaint with, providing information to,
or otherwise cooperating with the State Ombudsman, a certified ombudsman,
or an ombudsman intern; or
(B) for performing the functions of the Ombudsman Program
as described in Chapter 88 of this title.
(b) Criteria for assessing an administrative penalty.
HHSC considers the following in determining the amount of an administrative
penalty:
(1) the gradations of penalties established in subsection
(d) of this section;
(2) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the situation, and the
hazard or potential hazard created by the situation to the health
or safety of the public;
(3) the history of previous violations;
(4) deterrence of future violations;
(5) the license holder's efforts to correct the violation;
(6) the size of the facility and of the business entity
that owns the facility; and
(7) any other matter that justice may require.
(c) Late payment of an administrative penalty. A license
holder must pay an administrative penalty within 30 calendar days
after the penalty assessment becomes final. If a license holder fails
to timely pay the administrative penalty, HHSC may assess an administrative
penalty under subsection (a)(6) of this section, which is in addition
to the penalty that was previously assessed and not timely paid.
(d) Administrative penalty schedule. HHSC uses the
schedule of appropriate and graduated administrative penalties in
this subsection to determine which violations warrant an administrative
penalty.
Attached Graphic
(e) Administrative penalty assessed against a resident.
HHSC does not assess an administrative penalty against a resident,
unless the resident is also an employee of the facility or a controlling
person.
(f) Proposal of administrative penalties.
(1) HHSC issues a preliminary report stating the facts
on which HHSC concludes that a violation has occurred after HHSC has:
(A) examined the possible violation and facts surrounding
the possible violation; and
(B) concluded that a violation has occurred.
(2) HHSC may recommend in the preliminary report the
assessment of an administrative penalty for each violation and the
amount of the administrative penalty.
(3) HHSC provides a written notice of the preliminary
report to the license holder not later than 10 calendar days after
the date on which the preliminary report is issued. The written notice
includes:
(A) a brief summary of the violation;
(B) the amount of the recommended administrative penalty;
(C) a statement of whether the violation is subject
to correction in accordance with subsection (g) of this section and,
if the violation is subject to correction, a statement of:
(i) the date on which the license holder must file
with HHSC a plan of correction for approval by HHSC; and
(ii) the date on which the license holder must complete
the plan of correction to avoid assessment of the administrative penalty;
and
(D) a statement that the license holder has a right
to an administrative hearing on the occurrence of the violation, the
amount of the penalty, or both.
(4) Not later than 20 calendar days after the date
on which a license holder receives a written notice of the preliminary
report, the license holder may:
(A) give HHSC written consent to the preliminary report,
including the recommended administrative penalty; or
(B) make a written request to HHSC for an administrative
hearing.
(5) If a violation is subject to correction under subsection
(g) of this section, the license holder must submit a plan of correction
to HHSC for approval not later than 10 calendar days after the date
on which the license holder receives the written notice described
in paragraph (3) of this subsection.
(6) If a violation is subject to correction under subsection
(g) of this section, and after the license holder reports to HHSC
that the violation has been corrected, HHSC inspects the correction
or takes any other step necessary to confirm the correction and notifies
the facility that:
(A) the correction is satisfactory and HHSC is not
assessing an administrative penalty; or
(B) the correction is not satisfactory, and a penalty
is recommended.
(7) Not later than 20 calendar days after the date
on which a license holder receives a notice that the correction is
not satisfactory and that a penalty is recommended under paragraph
(6)(B) of this subsection, the license holder may:
(A) give HHSC written consent to HHSC report, including
the recommended administrative penalty; or
(B) make a written request to HHSC for an administrative
hearing.
(8) If a license holder consents to the recommended
administrative penalty or does not timely respond to a notice sent
under paragraph (3) of this subsection (written notice of the preliminary
report) or paragraph (6)(B) of this subsection (notice that the correction
is not satisfactory and recommendation of a penalty):
(A) HHSC assesses the recommended administrative penalty;
(B) HHSC gives written notice of the decision to the
license holder; and
(C) the license holder must pay the penalty not later
than 30 calendar days after the written notice given in subparagraph
(B) of this paragraph.
(g) Opportunity to correct.
(1) HHSC allows a license holder to correct a violation
before assessing an administrative penalty, except a violation described
in paragraph (2) of this subsection. To avoid assessment of a penalty,
a license holder must correct a violation not later than 45 calendar
days after the date the facility receives the written notice described
in subsection (f)(3) of this section.
(2) HHSC does not allow a license holder to avoid a
penalty assessment based on its correction of a violation:
(A) described by subsection (a)(2)-(9) of this section;
(B) of Texas Health and Safety Code §260A.014
or §260A.015;
(C) related to advance directives as described in §553.259(d)
of this chapter (relating to Admission Policies and Procedures);
(D) that is the second or subsequent violation of:
(i) a right of the same resident under §553.267
of this chapter (relating to Rights);
(ii) the same right of all residents under §553.267
of this chapter; or
Cont'd... |
