(a) The commission may assess an administrative penalty against a person who:
(1) violates this chapter or a rule, standard, or order adopted or license issued under this chapter;
(2) makes a false statement, that the person knows or should know is false, of a material fact:
(A) on an application for issuance or renewal of a license or in an attachment to the application; or
(B) with respect to a matter under investigation by the commission;
(3) refuses to allow a representative of the commission to inspect:
(A) a book, record, or file required to be maintained by the institution; or
(B) any portion of the premises of an institution;
(4) wilfully interferes with the work of a representative of the commission or the enforcement of this chapter;
(5) wilfully interferes with a representative of the commission preserving evidence of a violation of this chapter or a rule, standard, or order adopted or license issued under this chapter;
(6) fails to pay a penalty assessed by the commission under this chapter not later than the 10th day after the date the assessment of the penalty becomes final;
(7) fails to submit a plan of correction within 10 days after receiving a statement of licensing violations; or
(8) fails to notify the commission of a change in ownership before the effective date of that change of ownership.
(b) The penalty for a facility with fewer than 60 beds shall be not less than $100 or more than $1,000 for each violation. The penalty for a facility with 60 beds or more shall be not less than $100 or more than $5,000 for each violation. Each day a violation occurs or continues is a separate violation for purposes of imposing a penalty. The total amount of penalties assessed under this subsection for an on-site regulatory visit or complaint investigation, regardless of the duration of any ongoing violations, may not exceed:
(1) $5,000 for a facility with fewer than 60 beds; and
(2) $25,000 for a facility with 60 beds or more.
(c) The executive commissioner by rule shall specify each violation for which an administrative penalty may be assessed. In determining which violations warrant penalties, the executive commissioner shall consider:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients; and
(2) whether the affected facility had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction.
(d) The executive commissioner by rule shall establish a specific and detailed schedule of appropriate and graduated penalties for each violation based on:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard of the violation to the health or safety of clients;
(2) the history of previous violations;
(3) whether the affected facility had identified the violation as a part of its internal quality assurance process and had made appropriate progress on correction;
(4) the amount necessary to deter future violations;
(5) efforts made to correct the violation;
(6) the size of the facility; and
(7) any other matters that justice may require.
(e) The executive commissioner by rule shall provide the facility with a reasonable period of time, not less than 45 days, following the first day of a violation to correct the violation before the commission may assess an administrative penalty if a plan of correction has been implemented. This subsection does not apply to a violation described by Subsections (a)(2)-(8) or to a violation that the commission determines:
(1) represents a pattern of violation that results in actual harm;
(2) is widespread in scope and results in actual harm;
(3) is widespread in scope, constitutes a potential for actual harm, and relates to:
(A) staff treatment of a resident;
(B) active treatment;
(C) client behavior and facility practices;
(D) health care services;
(E) drug administration;
(F) infection control;
(G) food and nutrition services; or
(H) emergency preparedness and response;
(4) constitutes an immediate threat to the health or safety of a resident; or
(5) substantially limits the facility's capacity to provide care.
(f) The commission may not assess an administrative penalty for a minor violation if the person corrects the violation not later than the 46th day after the date the person receives notice of the violation.
(g) The executive commissioner shall establish a system to ensure standard and consistent application of penalties regardless of the facility location.
(h) All proceedings for the assessment of an administrative penalty under this chapter are subject to Chapter 2001 , Government Code.
(i) The commission may not assess an administrative penalty against a state agency.
(j) Notwithstanding any other provision of this section, an administrative penalty ceases to be incurred on the date a violation is corrected. The administrative penalty ceases to be incurred only if the facility:
(1) notifies the commission in writing of the correction of the violation and of the date the violation was corrected; and
(2) shows later that the violation was corrected.
(k) Rules adopted under this section shall include specific, appropriate, and objective criteria that describe the scope and severity of a violation that results in a recommendation for each specific penalty.
(l) The commission shall develop and use a system to record and track the scope and severity of each violation of this chapter or a rule, standard, or order adopted under this chapter for the purpose of assessing an administrative penalty for the violation or taking some other enforcement action against the appropriate facility to deter future violations. The system:
(1) must be comparable to the system used by the Centers for Medicare and Medicaid Services to categorize the scope and severity of violations for nursing homes; and
(2) may be modified, as appropriate, to reflect changes in industry practice or changes made to the system used by the Centers for Medicare and Medicaid Services.
(m) In this section:
(1) "Actual harm" means a negative outcome that compromises a resident's physical, mental, or emotional well-being.
(2) "Immediate threat to the health or safety of a resident" means a situation that causes, or is likely to cause, serious injury, harm, or impairment to or the death of a resident.
(3) "Pattern of violation" means repeated, but not pervasive, failures of a facility to comply with this chapter or a rule, standard, or order adopted under this chapter that:
(A) result in a violation; and
(B) are found throughout the services provided by the facility or that affect or involve the same residents or facility employees.
(4) "Widespread in scope" means a violation of this chapter or a rule, standard, or order adopted under this chapter that:
(A) is pervasive throughout the services provided by the facility; or
(B) that affects or has the potential to affect a large portion of or all of the residents of the facility.
Added by Acts 1997, 75th Leg., ch. 693, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 534, Sec. 3, eff. Sept. 1, 1999.
