Current through Reg. 49, No. 38; September 20, 2024
Enforcement action may be taken for the following
reasons.
(1) Denial, suspension or
revocation of a license or imposition of an administrative penalty. The
department has jurisdiction to enforce violations of the Act or the rules
adopted under this chapter. The department may deny, suspend, or revoke a
license or impose an administrative penalty if the licensee or applicant:
(A) fails to comply with any provision of
Health and Safety Code (HSC), Chapters 241 or 311;
(B) fails to comply with any provision of
this chapter (25 Texas Administrative Code, Chapter 133);
(C) fails to comply with a special license
condition;
(D) fails to comply with
an order of the department or another enforcement procedure under HSC, Chapters
241 or 311;
(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 241;
(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 241 and 311 and this
chapter. The department may deny a license if the applicant:
(A) fails to provide timely and sufficient
information required by the department that is directly related to the
application;
(B) has had the
following actions taken against the applicant within the two-year period
preceding the application:
(i) decertification
or cancellation of its contract under the Medicare or Medicaid program in any
state;
(ii) federal Medicare or
state Medicaid sanctions or penalties;
(iii) unsatisfied 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) Emergency suspension.
Following notice and opportunity for hearing, the commissioner of the
department of state health services (commissioner) or a person designated by
the commissioner may issue an emergency order in relation to the operation of a
hospital licensed under this chapter if the commissioner or the commissioner's
designee determines that the hospital is violating this chapter, a rule adopted
pursuant to this chapter, a special license provision, injunctive relief, an
order of the commissioner or the commissioner's designee, or another
enforcement procedure permitted under this chapter and the provision, rule,
license provision, injunctive relief, order, or enforcement procedure relates
to the health or safety of the hospital's patients.
(A) The department shall send written notice
of the hearing and shall include within the notice the time and place of the
hearing. The hearing must be held within 10 days after the date of the
hospital's receipt of the notice.
(B) The hearing shall be held in accordance
with the department's informal hearing rules.
(C) The order shall be effective on delivery
to the hospital or at a later date specified in the order.
(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
noncompliance with these rules or HSC, Chapter 241, 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 facility
licensed or regulated under this chapter for violations of the HSC, Chapters
241 and 311 and this chapter. The imposition of an administrative penalty shall
be in accordance with the provisions of the HSC, §241.059 and
§241.060.
(6) Licensure of
persons or entities with criminal backgrounds. The department 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 a facility. The department shall apply the requirements of the
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 (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
241;
(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 and 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 that demonstrate the inability of the person
or entity to own or operate a facility.
(ix) A license shall be revoked on the
licensee'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, or impose an administrative penalty, 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, 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 license holder has an opportunity for a hearing before imposition
of the action.
(8) Acceptance.
Within 20 days after receipt of the notice, the applicant or licensee may
notify the department, in writing, of acceptance of the department's
determination or request a hearing.
(9) Hearing request.
(A) A request for a hearing by the applicant
or licensee 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 date the notice is mailed by the department to
the last address known of the applicant or licensee.
(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 licensee fails to timely respond to the notice or does not request
a hearing in writing within 30 days after the date of the notice, the case
shall be set for a hearing.
(11)
Notification of department's final decision. The department shall send the
licensee or applicant a copy of the department's decision for denial,
suspension or revocation of license or imposition of an administrative penalty
by registered mail, which shall include the findings of fact and conclusions of
law on which the department based its decision.
(12) Decision to suspend or revoke. When the
department's decision to suspend or revoke a license is final, the licensee
must immediately cease operation, unless a stay of such action is issued by the
district court.
(13) Return of
original license. Upon suspension, revocation or non-renewal of the license,
the original license shall be returned to the department upon the effective
date of the department's determination.
(14) Reapplication following denial or
revocation.
(A) After the department's
decision to deny or revoke, or the voluntary surrender of a license by a
facility while enforcement action is pending, a facility may petition the
department, in writing, for a license.
(B) The department may allow a reapplication
for licensure if there is proof that the reasons for the original action no
longer exist.
(C) The department
may deny reapplication for licensure if the department determines that:
(i) the reasons for the original action
continues;
(ii) the petitioner has
failed to offer sufficient proof that conditions have changed; or
(iii) the petitioner has demonstrated a
repeated history of failure to provide patients a safe environment or has
violated patient rights.
(D) If the department allows a reapplication
for licensure, the petitioner shall be required to meet the requirements as
described in §
133.22
of this title (relating to Application and Issuance of Initial
License).
(15)
Expiration of a license during suspension. A facility whose license expires
during a suspension period may not reapply for license renewal until the end of
the suspension period.
(16)
Surrender of a license. In the event that enforcement, as defined in this
subsection, is pending or reasonably imminent, the surrender of a facility
license shall not deprive the department of jurisdiction in regard to
enforcement against the facility.
