SECTION 551.236. Administrative Penalties

(a) The Texas Health and Human Services Commission (HHSC) may assess an administrative penalty against a license holder if the license holder:

(1) violates Texas Health and Safety Code, Chapter 252, or any rule, standard, or order adopted or a license issued under such chapter and the violation creates a potential for more than minimal harm, results in actual harm, or poses an immediate threat to the health or safety of a resident;

(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 documentation submitted to HHSC in support of the application; or

(B) with respect to a matter under investigation by HHSC;

(3) refuses to allow a representative of HHSC to inspect:

(A) a book, record, or file required to be maintained by the person; or

(B) any portion of the premises of a facility;

(4) willfully interferes with the work of a representative of HHSC or the enforcement of Texas Health and Safety Code, Chapter 252;

(5) willfully interferes with a representative of HHSC preserving evidence of a violation of Texas Health and Safety Code, Chapter 252, or a rule, standard, or order adopted or license issued under such chapter;

(6) fails to pay a penalty assessed by HHSC under Texas Health and Safety Code, Chapter 252, not later than the 10th day after the date the assessment of the penalty becomes final;

(7) fails to submit an acceptable plan of correction to HHSC within 10 working days after receiving the final statement of licensing violations; or

(8) fails to notify HHSC of a change in ownership before the effective date of that change of ownership.

(b) In determining if a violation described in subsection (a)(1) of this section warrants an administrative penalty, HHSC considers:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) the hazard of the violation to the health and safety of a resident; and

(3) whether the affected license holder had identified the violation as part of its internal quality assurance process and had made appropriate progress on correction.

(c) HHSC does not assess an administrative penalty against a license holder because of a physician's or consultant's nonperformance beyond the license holder's control or if documentation clearly indicates the violation is beyond the license holder's control.

(d) An administrative penalty assessed in accordance with subsection (a)(1) of this section begins on the first date HHSC establishes that the violation that caused the penalty to be assessed exists.

(e) An administrative penalty assessed in accordance with subsection (a)(1) of this section ceases on the date the violation is corrected. A violation is corrected if the license holder:

(1) notifies HHSC in writing that the violation has been corrected;

(2) states the date of the correction in the notification; and

(3) maintains evidence that the violation was corrected on the date in the notification.

(f) An administrative penalty assessed in accordance with subsection (a)(1) of this section is determined based on the scope and severity of the violation, in accordance with the figures in this section.

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(g) An administrative penalty assessed in accordance with subsection (a)(2) - (8) of this section is in the following amount:

(1) for a facility with a licensed capacity of fewer than 60 residents:

(A) $500 for the first violation of the paragraph;

(B) $750 for the second violation of the same paragraph; and

(C) $1000 for the third violation of the same paragraph; and

(2) for a facility with a license capacity of 60 or more residents:

(A) $500 for the first violation of the paragraph;

(B) $3500 for the second violation of the same paragraph; and

(C) $5000 for the third violation of the same paragraph.

(h) Administrative penalties will be imposed on a per diem basis.

(i) 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) $5000 for a facility with a capacity of fewer than 60 residents; and

(2) $25000 for a facility with a capacity of 60 residents or more.

(j) If HHSC determines that a violation has occurred and that an administrative penalty is proposed, HHSC notifies the license holder of the proposal to assess an administrative penalty. The notification includes:

(1) a brief summary of the alleged violation;

(2) a statement of the amount of the proposed penalty; and

(3) a statement of the license holder's right to request a hearing on the occurrence of the violation, the amount of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(k) A license holder that is notified in accordance with subsection (j) of this section may file a request for a hearing with HHSC. To receive a hearing, a license holder must request a hearing in accordance with 1 TAC §357.484 (relating to Request for a Hearing) except, as provided by Texas Health and Safety Code §252.066 (relating to Notice; Request for Hearing), the license holder must make a written request for a hearing within 20 calendar days after the date on which the license holder receives written notice of the administrative penalty. A hearing requested under this section is governed by 1 TAC Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act).

Source Note: The provisions of this §551.236 adopted to be effective May 1, 1995, 20 TexReg 1659; amended to be effective February 1, 1999, 23 TexReg 11829; amended to be effective May 1, 2000, 25 TexReg 3557; amended to be effective June 1, 2002, 27 TexReg 4367; amended to be effective January 15, 2009, 34 TexReg 238; amended to be effective October 28, 2018, 43 TexReg 7191; transferred effective May 1, 2019, as published in the Texas Register April 12, 2019, 44 TexReg 1883; amended to be effective February 24, 2022, 47 TexReg 787