| (a) The Texas Health and Human Services Commission
(HHSC) may refuse to issue or renew a license for a facility if the
facility fails to comply with any provisions of the Act, this chapter,
or Health and Safety Code Chapter 171.
(b) Notwithstanding any other part of this chapter,
HHSC is prohibited under Health and Safety Code §171.005 and §171.207
from enforcing Health and Safety Code Chapter 171, Subchapter H (relating
to Detection of Fetal Heartbeat).
(c) HHSC may suspend, place on probation, or revoke
the license of a facility for one or more of the following reasons:
(1) the facility commits fraud, misrepresentation,
or concealment of a material fact on any documents required to be
submitted to HHSC or required to be maintained by the facility pursuant
to the Act;
(2) the facility or any of its employees materially
alters any license issued by HHSC;
(3) the facility or its employees commits an act which
causes immediate jeopardy to the health and safety of a patient;
(4) the facility is cited for deficiencies and fails
to submit an acceptable plan of correction in accordance with this
chapter;
(5) the facility has been cited for deficiencies and
fails to timely comply with minimum standards for licensure within
the dates designated in the plan of correction;
(6) the facility or any of its employees has aided,
abetted, or permitted the commission of an illegal act;
(7) the facility or any of its employees fails to comply
with any provisions of the Act or this chapter;
(8) the facility is not in compliance with minimum
standards for licensure;
(9) the facility fails to provide the required application
or renewal information;
(10) the facility fails to comply with an order of
the commissioner or another enforcement procedure under the Act;
(11) the facility discloses an action described in §139.23(c)(2)(C)(xi)
and (xii) of this chapter (relating to Application Procedures and
Issuance of Licenses);
(12) the facility knowingly employs as the facility
administrator or chief financial officer an individual who was convicted
of a felony or misdemeanor listed in subsection (d) of this section;
or
(13) the facility has a history of failure to comply
with the rules adopted under this chapter.
(d) HHSC may deny a person a license or suspend or
revoke an existing license on the grounds that the person has been
convicted of a felony or misdemeanor that directly relates to the
duties and responsibilities of the ownership or operation of a facility.
(1) In determining whether a criminal conviction directly
relates to the duties and responsibilities of the ownership or operation
of a licensed abortion facility, and in determining the fitness of
a person who has been convicted of a crime to perform such duties
and responsibilities, HHSC shall consider the provisions of Occupations
Code Chapter 53.
(2) HHSC is entitled to obtain criminal history information
maintained by the Texas Department of Public Safety (Government Code §411.122),
the Federal Bureau of Investigation (Government Code §411.087),
or any other law enforcement agency to investigate the eligibility
of an applicant for an initial or renewal license and to investigate
the continued eligibility of a licensee.
(3) The following felonies and misdemeanors directly
relate to the duties and responsibilities of the ownership or operation
of a licensed abortion facility because these criminal offenses demonstrate
impaired ability to own or operate a facility:
(A) a misdemeanor violation of Health and Safety Code
Chapter 171 or Chapter 245;
(B) a misdemeanor or felony involving moral turpitude;
(C) a misdemeanor or felony relating to deceptive business
practices;
(D) a misdemeanor or felony of practicing any health-related
profession without a required license;
(E) a misdemeanor or felony under any federal or state
law relating to drugs, dangerous drugs, or controlled substances;
(F) a misdemeanor or felony under the Penal Code, Title
5, involving a patient or client of any health care facility, a home
and community support services agency, or a health care professional;
or
(G) a misdemeanor or felony under the Penal Code:
(i) Title 4--offenses of attempting or conspiring to
commit any of the offenses in this clause;
(ii) Title 5--offenses against the person;
(iii) Title 7--offenses against property;
(iv) Title 8--offenses against public administration;
(v) Title 9--offenses against public order and decency;
(vi) Title 10--offenses against public health, safety
or morals; or
(vii) Title 11--offenses involving organized crime.
(4) Offenses listed in paragraph (3) of this subsection
are not exclusive in that HHSC may consider similar criminal convictions
from other state, federal, foreign or military jurisdictions which
indicate an impaired ability or tendency for the person to be unable
to own or operate a facility.
(5) A license holder's license shall be revoked on
the license holder's imprisonment following a felony conviction, felony
community supervision revocation, revocation of parole, or revocation
of mandatory supervision.
(e) All proceedings for the denial, suspension, probation,
or revocation of a license under this section shall be conducted at
the State Office of Administrative Hearings, and in accordance with
Health and Safety Code Chapter 245; Government Code Chapter 2001;
and Chapter 1, Subchapter B of this title (relating to Formal Hearing
Procedures).
(f) A person who has had a facility license revoked
under this section may not apply for a license under this chapter
for one year following the date of revocation.
(g) After an on-site inspection in which deficiencies
were cited by the surveyor, a facility may surrender its license before
expiration or allow its license to expire in lieu of HHSC proceeding
with enforcement action. HHSC may accept such submission, or reject
it and proceed with an enforcement action. The facility, its owner(s),
and its affiliates may not reapply for a license for six months from
the date of the surrender or expiration.
(h) If HHSC suspends a license, the suspension shall
remain in effect until HHSC determines that the reason for suspension
no longer exists. An HHSC surveyor shall conduct an inspection of
the facility prior to making a determination.
(1) During the time of suspension, the suspended license
holder shall return the original license certificate to HHSC.
(2) If a suspension overlaps a renewal date, the suspended
license holder shall comply with the renewal procedures in this chapter;
however, HHSC may not renew the license until HHSC determines that
the reason for suspension no longer exists.
(3) If suspension is for more than one year, the suspended
license holder may apply to HHSC for cancellation of the suspension
only after one year following the initial date of the suspension.
(i) If HHSC revokes or does not renew a license, a
person may reapply for a license (subject to subsection (e) of this
section), by complying with the requirements and procedures in this
chapter at the time of reapplication. HHSC may refuse to issue a license,
if the reason for revocation or non-renewal continues to exist, and
may consider the enforcement history of the applicant, administrator,
or clinical director in making such a determination.
(j) Upon revocation or non-renewal, a license holder
shall return the original license certificate to HHSC.
(k) Upon a licensee's felony conviction, felony probation
revocation, revocation of parole, or revocation of mandatory supervision,
the license shall be revoked.
(l) If HHSC finds that a licensed abortion facility
is in repeated noncompliance with Health and Safety Code Chapter 171
or Chapter 245, or rules adopted under this chapter, but the noncompliance
does not in any way involve the health and safety of the public or
an individual, HHSC may schedule the facility for probation rather
than suspending or revoking the facility's license.
(m) HHSC may suspend or revoke the license of a licensed
abortion facility that does not correct items that were in noncompliance
or that does not comply with Health and Safety Code Chapter 171 or
Chapter 245, or rules adopted under this chapter within the applicable
probation period.
(n) HHSC may suspend or revoke a license to be effective
immediately when a situation(s) is identified that poses immediate
jeopardy to the health and safety of person(s) at the facility.
(1) HHSC shall immediately give the licensee adequate
notice of the action taken, the legal grounds for the action, and
the procedure governing appeal of the action.
(2) HHSC shall set a hearing date not later than the
14th day after the effective date of the suspension or revocation.
(3) HHSC shall also notify the facility in writing
of the emergency action, the legal grounds for the action, the effective
date of the emergency action, the procedure governing appeal of the
action, and the date set for the hearing. This notice shall be sent
by certified mail, return receipt requested, or by personal delivery.
The hearing shall be conducted at the State Office of Administrative
Hearings, and pursuant to Health and Safety Code Chapter 245; Government
Code Chapter 2001; and the formal hearing procedures set out in Chapter
1, Subchapter B of this title.
(o) If a person violates the licensing requirements
of the Act or rules adopted under the Act, HHSC may petition the district
court for a temporary restraining order to restrain the person from
continuing the violation or operating without a license.
(p) If a person operates a facility without a license
as required by this chapter and the Act, the person is liable for
a civil penalty of not less than $1,000 nor more than $2,500 for each
day of violation.
(q) If a facility has had enforcement action taken
by HHSC against it, the facility, its owner(s), or its affiliate(s)
may not apply for a facility license for one year following the effective
date of the enforcement action. For purposes of this subsection only,
the term "enforcement action" means license revocation, suspension,
emergency suspension, or denial or injunctive action, but does not
include administrative penalties or civil penalties. If HHSC prevails
in one enforcement action (e.g., injunctive action) against the facility
but also proceeds with another enforcement action (e.g., revocation)
based on some or all of the same violations, but HHSC does not prevail
in the second enforcement action (e.g., the facility prevails), the
prohibition in this paragraph does not apply.
(r) If HHSC revokes or does not renew a license and
the one-year period described in subsection (q) of this section has
passed, a person may reapply for a license by complying with the requirements
and procedures in this chapter at the time of reapplication. HHSC
may refuse to issue a license, if the reason for revocation or non-renewal
continues to exist.
(s) Upon revocation or non-renewal, a license holder
shall return the license to HHSC.
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