Current through Reg. 49, No. 38; September 20, 2024
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 (26 Texas Administrative Code, Chapter 510);
(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 (26 TAC, Chapter 510), 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.
(11) Notification of department's decision.
The department shall send the license holder or applicant a copy of the
department's decision for denial, suspension or revocation of license by
registered mail, which shall include the findings and conclusions on which the
department based its decision.
(12)
Admission of new patients upon suspension or revocation. Upon the department's
determination to suspend or revoke a license, the license holder may not admit
new patients until the license is reissued.
(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) One year
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. Expiration of a license
prior to the department's decision becoming final shall not affect the one-year
waiting period required before a petition can be submitted.
(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; 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 §
510.22 of Title 40 (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.
