Enforcement is a process by which a sanction is proposed, and
if warranted, imposed on an applicant or licensee regulated by the
department for failure to comply with statutes, rules and orders applicable
to them.
(1) Denial, suspension or revocation of a license.
The department has jurisdiction to enforce violations of the Acts
or the Rules adopted under this chapter. The department may deny,
suspend, or revoke a license for, but not limited to, the following
reasons:
(A) fails to comply with any provision of Health and
Safety Code (HSC), Chapters 577 and 571;
(B) fails to comply with any provision of this chapter
(25 Texas Administrative Code, Chapter 134);
(C) fails to comply with a special license condition;
(D) fails to comply with an order of the commissioner
of health (commissioner) or another enforcement procedure under HSC,
Chapters 577 and 571;
(E) has a history of failure to comply with the rules
adopted under this chapter relating to patient environment, health,
safety, and rights;
(F) has aided, abetted or permitted the commission
of an illegal act;
(G) has committed fraud, misrepresentation, or concealment
of a material fact on any documents required to be submitted to the
department or required to be maintained by the facility pursuant to
the provisions of this chapter;
(H) fails to pay administrative penalties in accordance
with HSC, Chapter 571;
(I) fails to implement plans of corrections to deficiencies
cited by the department; or
(J) fails to comply with applicable requirements within
a designated probation period.
(2) Denial of a license. The department has jurisdiction
to enforce violations of the HSC, Chapters 577 and 571, and this chapter.
The department may deny a person a license for, but not limited to,
the following reasons:
(A) fails to provide the required application or renewal
information;
(B) discloses any of the following actions against
or by the applicant, or the licensee, or against or by affiliates,
or managers of the applicant or the licensee within the two-year
period preceding the application:
(i) operation of a facility that has been decertified
or had its contract cancelled under the Medicare or Medicaid program
in any state;
(ii) federal Medicare or state Medicaid sanctions or
penalties;
(iii) federal or state tax liens;
(iv) unsatisfied final judgments;
(v) eviction involving any property or space used as
a hospital in any state;
(vi) unresolved state Medicaid or federal Medicare
audit exceptions;
(vii) denial, suspension, or revocation of a hospital
license, a private psychiatric hospital license, or a license for
any health care facility in any state; or
(viii) a court injunction prohibiting ownership or
operation of a facility.
(3) Order for immediate license suspension. The department
may suspend a license for 10 days pending a hearing if after an investigation
the department finds that there is an immediate threat to the health
or safety of the patients or employees of a licensed facility. The
department may issue necessary orders for the patients' welfare.
(4) Probation. In lieu of suspending or revoking the
license, the department may schedule the facility for a probation
period of not less than 30 days if the facility is found in repeated
non-compliance and the facility's noncompliance does not endanger
the health and safety of the public.
(5) Administrative penalty. The department has jurisdiction
to impose an administrative penalty against a person licensed or regulated
under this chapter for violations of the HSC, Chapters 577 and 571,
this chapter (25 TAC, Chapter 134), or for any reasons outlined in
paragraphs (1) through (3) of this subsection. The imposition of an
administrative penalty shall be in accordance with the provisions
of the HSC, §571.025 and §577.060.
(6) Licensure of persons with criminal backgrounds.
The department 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. The
department shall apply the requirements of the Texas Occupations Code,
Chapter 53.
(A) The department is entitled to obtain criminal history
information maintained by the Texas Department of Public Safety (Government
Code, §411.122), the Federal Bureau of Investigation Identification
Division (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.
(B) In determining whether a criminal conviction directly
relates, the department shall consider the provisions of Occupations
Code, §53.022 and §53.023.
(C) The following felonies and misdemeanors directly
relate because these criminal offenses indicate an inability or a
tendency for the person to be unable to own or operate a facility:
(i) a misdemeanor violation of HSC, Chapter 571;
(ii) a misdemeanor or felony involving moral turpitude;
(iii) a misdemeanor or felony relating to deceptive
business practices;
(iv) a misdemeanor or felony of practicing any health-related
profession without a required license;
(v) a misdemeanor or felony under any federal or state
law relating to drugs, dangerous drugs, or controlled substances;
(vi) a misdemeanor or felony under the Texas Penal
Code (TPC), Title 5, involving a patient or a client of any health
care facility, a home and community support services agency or a health
care professional;
(vii) a misdemeanor or felony under the TPC:
(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.
(viii) Offenses listed in subparagraph (C) of this
paragraph are not exclusive in that the department may consider similar
criminal convictions from other state, federal, foreign or military
jurisdictions which indicate an inability or tendency for the person
to be unable to own or operate a facility.
(ix) 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.
(7) Notice. If the department proposes to deny, suspend
or revoke a license, the department shall send a notice of the proposed
action by certified mail, return receipt requested, at the address
shown in the current records of the department or the department may
personally deliver the notice. The notice to deny, suspend, or revoke
a license shall state the alleged facts or conduct to warrant the
proposed action, provide an opportunity to demonstrate or achieve
compliance, and shall state that the applicant or license holder has
an opportunity for a hearing before taking the action.
(8) Acceptance. Within 20 days after receipt of the
notice, the applicant or license holder may notify the department,
in writing, of acceptance of the department's determination.
(9) Hearing request.
(A) A request for a hearing by the applicant or license
holder, shall be in writing and submitted to the department within
20 calendar days of receipt of the notice. Receipt of the notice
is presumed to occur on the 30th day after the notice is mailed by
the department to the last address known of the applicant or license
holder.
(B) A hearing shall be conducted pursuant to the Administrative
Procedure Act, Government Code, Chapter 2001.
(10) No response to notice. If the applicant or license
holder fails to timely respond to the notice or does not request a
hearing in writing within 30 days after proper notice, the person
is deemed to have waived the opportunity for a hearing as outlined
in the notice and the proposed action shall be taken by default.
Cont'd... |
