SECTION 133.121. Enforcement Action

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.

Source Note: The provisions of this §133.121 adopted to be effective June 21, 2007, 32 TexReg 3587