SECTION 510.83. Enforcement

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 (25 Texas Administrative Code, Chapter 134);

(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 (25 TAC, Chapter 134), 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 §134.22 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 §510.83 adopted to be effective January 1, 2004, 28 TexReg 5154; amended to be effective May 9, 2004, 29 TexReg 4159; transferred effective June 1, 2019, as published in the Texas Register May 17, 2019, 44 TexReg 2469