25 Tex. Admin. Code § 135.67

Current through Reg. 50, No. 1; January 3, 2025

Section 135.67 - Enforcement

(a) Enforcement is a process by which a sanction is proposed, and if warranted, imposed on an applicant or licensee regulated by the Texas Health and Human Services Commission (HHSC) for failure to comply with applicable statutes, rules, and orders.

(b) HHSC has jurisdiction to enforce violations of the Act or the rules adopted under this chapter. HHSC may deny, suspend, or revoke a license or impose an administrative penalty for:

(1) failure to comply with any applicable provision of the Texas Health and Safety Code (HSC), including Chapter 243;

(2) failure to comply with any provision of this chapter or any other applicable laws;

(3) the ambulatory surgical center (ASC), or any of its employees, commits an act which causes actual harm or risk of harm to the health or safety of a patient;

(4) the ASC, or any of its employees, materially alters any license issued by HHSC;

(5) failure to comply with minimum standards for licensure;

(6) failure to provide a complete license application;

(7) failure to comply with an order of the HHSC executive commissioner or another enforcement procedure under the Act;

(8) a history of failure to comply with the applicable rules relating to patient environment, health, safety, and rights;

(9) the ASC aiding, committing, abetting, or permitting the commission of an illegal act;

(10) the ASC, or any of its employees, committing fraud, misrepresentation, or concealment of a material fact on any documents required to be submitted to HHSC or required to be maintained by the ASC pursuant to the Act and the provisions of this chapter;

(11) failure to timely pay an assessed administrative penalty as required by HHSC;

(12) failure to submit an acceptable plan of correction for cited deficiencies within the timeframe required by HHSC;

(13) failure to timely implement plans of correction to deficiencies cited by HHSC within the dates designated in the plan of correction;

(14) failure to comply with applicable requirements within a designated probation period; or

(15) the ASC terminating the ASC's Medicare provider agreement if the ASC is certified under Title XVIII of the Social Security Act, 42 United States Code (USC), §1395 et seq.

(c) HHSC has jurisdiction to enforce violations of the Act and this chapter. HHSC may deny a license if the applicant:

(1) fails to provide timely and sufficient information required by HHSC that is directly related to the license application; or

(2) has had the following actions taken against the applicant within the two-year period preceding the license application:

(A) decertification or cancellation of its contract under the Medicare or Medicaid program in any state;

(B) federal Medicare or state Medicaid sanctions or penalties;

(C) unsatisfied federal or state tax liens;

(D) unsatisfied final judgments;

(E) eviction involving any property or space used as an ASC in any state;

(F) unresolved federal Medicare or state Medicaid audit exceptions;

(G) denial, suspension, or revocation of an ASC license, a hospital license, a private psychiatric hospital license, or a license for any health care facility in any state; or

(H) a court injunction prohibiting ownership or operation of a facility.

(d) HHSC may deny a person or entity a license or suspend or revoke an existing license on the grounds that the person or entity has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the ownership or operation of an ASC.

(1) In determining whether a criminal conviction directly relates, HHSC shall apply the requirements and consider the provisions of Texas Occupations Code Chapter 53.

(2) The following felonies and misdemeanors directly relate to the duties and responsibilities of the ownership or operation of an ASC because these criminal offenses indicate an ability or a tendency for the person to be unable to own or operate an ASC:

(A) a misdemeanor violation of the Act;

(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 Texas Penal Code (TPC) Title 5, involving a patient, resident, or a client of any health care facility, a home and community support services agency, or a health care professional;

(G) a misdemeanor or felony under the TPC:

(i) Title 4;

(ii) Title 5;

(iii) Title 7;

(iv) Title 8;

(v) Title 9;

(vi) Title 10; or

(vii) Title 11.

(H) Offenses listed in paragraph (2) of this subsection are not exclusive in that HHSC may consider similar criminal convictions from other state, federal, foreign or military jurisdictions that indicate an inability or tendency for the person or entity to be unable to own or operate an ASC.

(3) HHSC shall revoke a license on the licensee's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision.

(e) If HHSC proposes to deny, suspend, or revoke a license, or impose an administrative penalty, HHSC shall send a notice of the proposed action by certified mail, return receipt requested, at the address shown in the current records of HHSC or HHSC may personally deliver the notice. The notice to deny, suspend, or revoke a license, or impose an administrative penalty, 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 licensee has an opportunity for a hearing before taking the action.

(f) Within 20 calendar days after receipt of the notice described in subsection (e) of this section, the applicant or licensee shall notify HHSC, in writing, of acceptance of HHSC's determination or request a hearing.

(g) A request for a hearing by the applicant or licensee shall be in writing and submitted to HHSC within 20 calendar days after receipt of the notice described in subsection (e) of this section. Receipt of the notice is presumed to occur on the third day after the date HHSC mails the notice to the last known address of the applicant or licensee.

(1) A hearing shall be conducted pursuant to Texas Government Code Chapter 2001 and Texas Administrative Code Title 1 Chapter 357, Subchapter I (relating to Hearings Conducted Under the Administrative Procedure Act).

(2) If an applicant or licensee does not request a hearing in writing within 20 calendar days after receiving the notice of the proposed action described in subsection (e) of this section, the applicant or licensee is deemed to have waived the opportunity for a hearing and HHSC shall take the proposed action.

(h) If HHSC finds that a violation of the standards or licensing requirements prescribed by the Act creates an immediate threat to the health and safety of patients of an ASC, HHSC may petition the district court for a temporary restraining order to restrain continuing violations.

(i) If a person violates the licensing requirements or the standards prescribed by the Act, HHSC may petition the district court for an injunction to prohibit the person from continuing the violation or to restrain or prevent the establishment or operation of an ASC without a license issued under the Act.

(j) HHSC may issue an emergency order to suspend a license issued under this chapter, if HHSC has reasonable cause to believe that the conduct of a licensee creates an immediate danger to public health and safety.

(1) An emergency suspension is effective immediately without a hearing on notice to the licensee.

(2) On written request of the licensee to HHSC for a hearing, HHSC refers the matter to the State Office of Administrative Hearings (SOAH). An administrative law judge of the office conducts a hearing not earlier than the 10th day or later than the 30th day after the date the hearing request is received to determine if the emergency suspension is to be continued, modified, or rescinded. The hearing and any appeal are governed by HHSC's rules for a contested case hearing and Texas Government Code Chapter 2001.

(k) In lieu of denying, suspending or revoking the license, HHSC may place the ASC on probation for a period of not less than 30 days, if HHSC finds the ASC is in repeated non-compliance with this chapter or the Act, and the ASC's noncompliance does not endanger the public's health and safety.

(1) HHSC shall provide notice of the probation to the ASC not later than the 10th day before the date the probation begins. The notice includes the items of noncompliance that resulted in placing the ASC on probation and shall designate the period of the probation.

(2) During the probationary period, the ASC shall correct the items of noncompliance and report the corrections to HHSC for approval.

(3) HHSC may verify the corrective actions through an on-site inspection.

(l) HHSC may impose an administrative penalty on a person licensed under this chapter who violates the Act, this chapter, or an order adopted under this chapter.

(1) A penalty collected under this section shall be deposited in the state treasury in the general revenue fund.

(2) A proceeding to impose an administrative penalty is considered a contested case hearing under Texas Government Code Chapter 2001.

(3) The amount of the penalty may not exceed $1,000 for each violation, and each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this paragraph may not exceed $5,000.

(4) In determining the amount of an administrative penalty assessed under this section, HHSC shall consider:

(A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(B) the threat to health or safety caused by the violation;

(C) the history of previous violations;

(D) the amount necessary to deter a future violation;

(E) whether the violator demonstrated good faith, including when applicable whether the violator made good faith efforts to correct the violation; and

(F) any other matter that justice may require.

(5) If HHSC initially determines that a violation occurred, HHSC shall give written notice of the report by certified mail to the person alleged to have committed the violation following the exit conference date. The notice includes:

(A) a brief summary of the alleged violation;

(B) a statement of the amount of the recommended administrative penalty; and

(C) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

(6) Within 20 calendar days after the date the person receives the notice under paragraph (5) of this subsection, the person in writing may:

(A) accept the determination and recommended administrative penalty of HHSC; or

(B) make a request for a hearing on the occurrence of the violation, the amount of the administrative penalty, or both.

(7) If the person accepts the determination and recommended administrative penalty or if the person fails to respond to the notice, the HHSC executive commissioner or the executive commissioner's designee by order approves the determination and imposes the recommended penalty.

(8) If the person requests a hearing under paragraph (6)(B) of this subsection, the HHSC executive commissioner refers the matter to SOAH. The hearing shall be conducted in accordance with Texas Government Code Chapter 2001, and all applicable SOAH and HHSC rules.

(9) Based on the proposal for the decision made by the administrative law judge under paragraph (8) of this subsection, the HHSC executive commissioner by order may find that a violation occurred or a violation did not occur.

(10) The HHSC executive commissioner or the executive commissioner's designee sends notice of the executive commissioner's order under paragraph (9) of this subsection to the person alleged to have committed the violation in accordance with Texas Government Code Chapter 2001. The notice shall include:

(A) a statement of the right of the person to judicial review of the order;

(B) separate statements of the findings of fact and conclusions of law; and

(C) the amount of any penalty assessed.

(11) Within 30 calendar days after the date an order of the HHSC executive commissioner under paragraph (9) of this subsection that imposes an administrative penalty becomes final, the person shall:

(A) pay the penalty; or

(B) appeal the penalty by filing a petition for judicial review of the executive commissioner's order contesting the occurrence of the violation, the amount of the penalty, or both.

(12) Within the 30-day period prescribed by paragraph (11) of this subsection, a person who files a petition for judicial review may:

(A) stay enforcement of the penalty by:

(i) paying the penalty to the court for placement in an escrow account; or

(ii) giving the court a supersedeas bond that is approved by the court for the amount of the penalty, and that is effective until all judicial review of the HHSC executive commissioner's order is final; or

(B) request the court to stay enforcement of the penalty by:

(i) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and

(ii) sending a copy of the affidavit to the HHSC executive commissioner by certified mail.

(C) If the HHSC executive commissioner receives a copy of an affidavit under subparagraph (B) of this paragraph, the executive commissioner may file with the court, within five days after the date the copy is received, a contest to the affidavit. In accordance with HSC §243.016(c), the court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty or to give a supersedeas bond.

(13) If the person does not pay the penalty and the enforcement of the penalty is not stayed, HHSC may refer the matter to the attorney general for collection of the penalty. As provided by HSC §243.016(d), the attorney general may sue to collect the penalty.

(14) A decision by the court is governed by HSC §243.016(e) and (f), and provides the following.

(A) If the court sustains the finding that a violation occurred, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.

(B) If the court does not sustain the finding that a violation occurred, the court shall order that a penalty is not owed.

(15) The remittance of penalty and interest is governed by HSC §243.016(g) and provides the following.

(A) If the person paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount plus accrued interest be remitted to the person within 30 days after the date that the judgment of the court becomes final.

(B) The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.

(C) The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

(16) The release of supersedeas bond is governed by HSC §243.016(h) and provides the following.

(A) If the person gave a supersedeas bond and the court does not uphold the penalty, the court shall order, when the court's judgment becomes final, the release of the bond.

(B) If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount.

25 Tex. Admin. Code § 135.67

Adopted by Texas Register, Volume 49, Number 46, November 15, 2024, TexReg 9239, eff. 11/21/2024