| (a) Assessing penalties. HHSC may assess an administrative
penalty against a person who violates:
(1) the Statute;
(2) a provision in this chapter for which a penalty
may be assessed; or
(3) Texas Occupations Code §102.001 (relating
to Soliciting Patients; Offense) or §102.006 (relating to Failure
to Disclose; Offense), if related to the provision of home health,
hospice, or personal assistance services.
(b) Criteria for assessing penalties. HHSC assesses
administrative penalties in accordance with the schedule of appropriate
and graduated penalties established in this section.
(1) The schedule of appropriate and graduated penalties
for each violation is based on the following criteria:
(A) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of clients;
(B) the history of previous violations by a person
or a controlling person with respect to that person;
(C) whether the affected agency identified the violation
as part of its internal quality assurance process and made a good
faith, substantial effort to correct the violation in a timely manner;
(D) the amount necessary to deter future violations;
(E) efforts made to correct the violation; and
(F) any other matters that justice may require.
(2) In determining which violation warrants a penalty,
HHSC considers:
(A) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation and the
hazard of the violation to the health or safety of clients; and
(B) whether the affected agency identified the violation
as part of its internal quality assurance program and made a good
faith, substantial effort to correct the violation in a timely manner.
(c) Opportunity to correct. Except as provided in subsections
(e) and (f) of this section, HHSC provides an agency with an opportunity
to correct a violation in accordance with the time frames established
in §558.527(g)(2) of this chapter (relating to Post-Survey Procedures)
before assessing an administrative penalty if a plan of correction
has been implemented.
(d) Minor violations.
(1) HHSC may not assess an administrative penalty for
a minor violation unless the violation is of a continuing nature or
is not corrected in accordance with an accepted plan of correction.
(2) HHSC may assess an administrative penalty for a
subsequent occurrence of a minor violation when cited within three
years from the date the agency first received written notice of the
violation.
(3) HHSC does not assess an administrative penalty
for a subsequent occurrence of a minor violation when cited more than
three years from the date the agency first received written notice
of the violation.
(e) No opportunity to correct. HHSC may assess an administrative
penalty without providing an agency with an opportunity to correct
a violation if HHSC determines that the violation:
(1) results in serious harm to or death of a client;
(2) constitutes a serious threat to the health or safety
of a client;
(3) substantially limits the agency's capacity to provide
care;
(4) involves the provisions of Texas Human Resources
Code Chapter 102, Rights of the Elderly;
(5) is a violation in which a person:
(A) makes a false statement, that the person knows
or should know is false of a material fact:
(i) on an application for issuance or renewal of a
license or in an attachment to the application; or
(ii) with respect to a matter under investigation by
HHSC;
(B) refuses to allow a representative of HHSC to inspect
a book, record, or file required to be maintained by an agency;
(C) willfully interferes with the work of a representative
of HHSC or the enforcement of this chapter;
(D) willfully interferes with a representative of HHSC
preserving evidence of a violation of this chapter or a rule, standard,
or order adopted, or license issued under this chapter;
(E) fails to pay a penalty assessed by HHSC under this
chapter within 10 days after the date the assessment of the penalty
becomes final; or
(F) fails to submit:
(i) a plan of correction within 10 days after the date
the person receives a statement of licensing violations; or
(ii) an acceptable plan of correction within 30 days
after the date the person receives notification from HHSC that the
previously submitted plan of correction is not acceptable.
(f) Violations relating to Advance Directives. As provided
in Texas Health and Safety Code §142.0145, HHSC assesses an administrative
penalty of $500 for a violation of §558.283 of this chapter (relating
to Advance Directives) without providing an agency with an opportunity
to correct the violation.
(g) Penalty calculation and assessment.
(1) Each day that a violation occurs before the date
on which the person receives written notice of the violation is considered
one violation.
(2) Each day that a violation occurs after the date
on which an agency receives written notice of the violation constitutes
a separate violation.
(h) Schedule of appropriate and graduated penalties.
(1) If two or more rules listed in paragraphs (2) and
(3) of this subsection relate to the same or similar matter, one administrative
penalty may be assessed at the higher severity level violation.
(2) Severity Level A violations.
(A) The penalty range for a Severity Level A violation
is $100 - $250 per violation.
(B) A Severity Level A violation is a violation that
has or has had minor or no client health or safety significance.
(C) HHSC assesses a penalty for a Severity Level A
violation only if the violation is of a continuing nature or was not
corrected in accordance with an accepted plan of correction.
(D) HHSC may assess a separate Severity Level A administrative
penalty for each of the rules listed in the following table.
Attached Graphic
(3) Severity Level B violations.
(A) The penalty range for a Severity Level B violation
is $500-$1,000 per violation.
(B) A Severity Level B violation is a violation that:
(i) results in serious harm to or death of a client;
(ii) constitutes an actual serious threat to the health
or safety of a client; or
(iii) substantially limits the agency's capacity to
provide care.
(C) The penalty for a Severity Level B violation that:
(i) results in serious harm to or death of a client
is $1,000;
(ii) constitutes an actual serious threat to the health
or safety of a client is $500 - $1,000; and
(iii) substantially limits the agency's capacity to
provide care is $500 - $750.
(D) As provided in subsection (e) of this section,
a Severity Level B violation is a violation for which HHSC may assess
an administrative penalty without providing an agency with an opportunity
to correct the violation.
(E) HHSC may assess a separate Severity Level B administrative
penalty for each of the rules listed in the following table.
Attached Graphic
(i) Violations for which HHSC may assess an administrative
penalty of $500.
(1) HHSC may assess an administrative penalty of $500
for each of the violations listed in subsection (e)(4) and (5) of
this section, without providing an agency with an opportunity to correct
the violation.
(2) A separate penalty may be assessed for each of
these violations.
(j) Proposal of administrative penalties.
(1) If HHSC assesses an administrative penalty, HHSC
provides a written notice of violation letter to an agency. The notice
includes:
(A) a summary of the violation;
(B) the amount of the proposed penalty; and
(C) a statement of the agency's right to a formal administrative
hearing on the occurrence of the violation, the amount of the penalty,
or both the occurrence of the violation and the amount of the penalty.
(2) An agency may accept HHSC determination within
20 days after the date on which the agency receives the notice of
violation letter, including the proposed penalty, or may make a written
request for a formal administrative hearing on the determination.
Cont'd... |
