| (a) HHSC may assess an administrative penalty if a
facility:
(1) violates Texas Human Resources Code (THRC), Chapter
103, a rule, standard, or order adopted under this chapter, or a term
of a license issued under this chapter;
(2) makes a false statement of a material fact that
the facility knows or should know is false:
(A) on an application for a license or a renewal of
a license or in an attachment to the application; or
(B) with respect to a matter under investigation by
HHSC;
(3) refuses to allow an HHSC representative to inspect:
(A) a book, record, or file required to be maintained
by a facility; or
(B) any portion of the premises of a facility;
(4) willfully interferes with the work of a representative
of HHSC or the enforcement of this chapter;
(5) willfully interferes with an HHSC representative
who is preserving evidence of a violation of THRC, Chapter 103, a
rule adopted under this chapter, or a term of a license issued under
this chapter;
(6) fails to pay a penalty assessed under THRC, Chapter
103 or a rule adopted under this chapter not later than the 30th day
after the date the assessment of the penalty becomes final; or
(7) fails to notify HHSC of a change of ownership before
the effective date of the change of ownership.
(b) HHSC assesses administrative penalties against
a facility in accordance with the schedule of appropriate and graduated
penalties established in this section. HHSC considers the following
in determining the amount of an administrative penalty:
(1) 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;
(2) the history of previous violations by a facility;
(3) the amount necessary to deter future violations;
(4) the facility's efforts to correct the violation;
and
(5) any other matter that justice may require.
(c) Each day of a continuing violation constitutes
a separate violation. The administrative penalties for each day of
a continuing violation cease on the date the violation is corrected.
A violation that is the subject of a penalty is presumed to continue
on each successive day until it is corrected. The date of correction
alleged by the facility in its written plan of correction will be
presumed to be the actual date of correction unless it is later determined
by HHSC that the correction was not made by that date or was not satisfactory.
(d) The administrative penalty schedule includes violations
that warrant an administrative penalty.
Attached Graphic
(e) HHSC may not collect an administrative penalty
from a facility if, not later than the 45th day after the date the
facility receives notice under subsection (j) of this section, the
facility corrects the violation.
(f) Subsection (e) of this section does not apply to:
(1) a violation that HHSC determines:
(A) is a pattern of violation that results in actual
harm;
(B) is widespread in scope and results in actual harm;
(C) is widespread in scope, constitutes a potential
for more than minimal harm, and relates to:
(i) staffing, including staff training, ratio, and
health under §98.62(b), §98.62(c), and §98.62(e) of
this chapter (relating to Program Requirements);
(ii) administration of medication under §98.62(f)
of this chapter; or
(iii) emergency preparedness and response under §98.64
of this chapter (relating to Emergency Preparedness and Response);
(D) is an immediate threat to the health or safety
of an elderly person or a person with a disability receiving services
at a facility; or
(E) substantially limits the facility's capacity to
provide care;
(2) a violation described by subsection (a)(2) - (7)
of this section;
(3) a violation of THRC, Chapter 102; or
(4) a second or subsequent violation of §98.62(e)(3)
of this chapter that occurs before the second anniversary of the date
of a previous violation of §98.62(e)(3) of this chapter.
(g) A facility that corrects a violation must maintain
the correction. If the facility fails to maintain the correction until
at least the first anniversary after the date the correction was made,
HHSC may assess and collect an administrative penalty for the subsequent
violation. An administrative penalty assessed under this subsection
is equal to three times the amount of the original penalty assessed
but not collected. HHSC is not required to provide the facility with
an opportunity to correct the subsequent violation.
(h) HHSC issues a preliminary report stating the facts
on which HHSC concludes that a violation has occurred after HHSC has:
(1) examined the possible violation and facts surrounding
the possible violation; and
(2) concluded that a violation has occurred.
(i) In the report, HHSC may recommend the assessment
of an administrative penalty for each violation and the amount of
the administrative penalty.
(j) HHSC provides a written notice of a preliminary
report to the facility not later than 10 days after the date HHSC
issues the preliminary report. The written notice includes:
(1) a brief summary of each violation;
(2) the amount of each recommended administrative
penalty;
(3) a statement of whether a violation is subject to
correction in accordance with subsection (e) of this section and,
if the violation is subject to correction, a statement of:
(A) the date on which the facility must file with HHSC
a plan of correction for approval by HHSC; and
(B) the date on which the facility must complete the
plan of correction to avoid assessment of the administrative penalty;
and
(4) a statement that the facility has a right to an
administrative hearing on the occurrence of the violation, the amount
of the penalty, or both.
(k) Not later than 20 days after the date on which
a facility receives a written notice of a preliminary report, the
facility may:
(1) give HHSC written notice that the facility agrees
with HHSC report and consents to the recommended penalty; or
(2) make a written request for an administrative hearing.
(l) If a violation is subject to correction under subsection
(e) of this section, the facility must submit a plan of correction
to HHSC for approval not later than 10 days after the date on which
the facility receives the written notice.
(m) If a violation is subject to correction, and the
facility reports to HHSC that the violation has been corrected, HHSC
inspects the correction or takes any other step necessary to confirm
the correction and notify the facility that:
(1) the correction is satisfactory and HHSC will not
assess an administrative penalty; or
(2) the correction is not satisfactory and HHSC recommends
an administrative penalty.
(n) Not later than 20 days after the date on which
a facility receives a notice that the correction is not satisfactory
and HHSC recommends an administrative penalty, the facility may:
(1) give HHSC written notice that the facility agrees
with HHSC's determination and consents to the recommended administrative
penalty; or
(2) make a written request to HHSC for an administrative
hearing.
(o) If a facility consents to the recommended administrative
penalty or does not timely respond to a notice sent under subsection
(j) of this section (written notice of the preliminary report), the
executive commissioner or designee assesses the recommended administrative
penalty. If the executive commissioner or designee assesses the penalty,
HHSC gives written notice of the penalty to the facility and the facility
must pay the penalty within 30 days after receiving the notice.
(p) An administrative hearing is held in accordance
with Chapter 91 of this title (relating to Hearings Under the Administrative
Procedure Act) and HHSC rules at 1 Texas Administrative Code Chapter
357, Subchapter I (relating to Hearings Under the Administrative Procedure
Act).
(q) An administrative law judge sets a hearing and
gives notice of the hearing if a facility that is assessed a penalty
requests a hearing.
Cont'd... |
