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AN ACT
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relating to the regulation of freestanding emergency medical care |
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facilities; providing an administrative penalty; creating an |
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offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle B, Title 4, Health and Safety Code, is |
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amended by adding Chapter 254 to read as follows: |
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CHAPTER 254. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 254.001. DEFINITIONS. In this chapter: |
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(1) "Department" means the Department of State Health |
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Services. |
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(2) "Emergency care" has the meaning assigned by |
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Sections 843.002 and 1301.155, Insurance Code. |
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(3) "Executive commissioner" means the executive |
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commissioner of the Health and Human Services Commission. |
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(4) "Facility" means a freestanding emergency medical |
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care facility. |
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(5) "Freestanding emergency medical care facility" |
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means a facility, structurally separate and distinct from a |
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hospital that receives an individual and provides emergency care, |
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as defined by Subsection (2). |
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[Section 254.002-254.050 reserved for expansion] |
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SUBCHAPTER B. LICENSING |
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Sec. 254.051. LICENSE REQUIRED. (a) Except as provided by |
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Section 254.052, a person may not establish or operate a |
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freestanding emergency medical care facility in this state without |
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a license issued under this chapter. |
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(b) Except as provided by Section 254.052, a facility or |
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person may not hold itself out to the public as a freestanding |
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emergency medical care facility or use any similar term, as defined |
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by department rule, that would give the impression that the |
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facility or person is providing emergency care unless the facility |
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or person holds a license issued under this chapter. The use of the |
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term "emergency" or a similar term is also subject to Section |
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254.152. |
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(c) Each separate facility location must have a separate |
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license. |
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(d) A license issued under this chapter is not transferable |
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or assignable. |
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(e) The executive commissioner by rule shall establish a |
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classification for a facility that is in continuous operation 24 |
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hours per day and 7 days per week and a classification for a |
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facility that is in operation 7 days per week and at least 12 hours |
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per day. |
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(f) A facility that is not in continuous operation 24 hours |
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per day and 7 days per week cannot be issued a license with a term |
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that extends beyond August 31, 2013. |
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Sec. 254.052. EXEMPTIONS FROM LICENSING REQUIREMENT. The |
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following facilities are not required to be licensed under this |
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chapter: |
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(1) an office or clinic owned and operated by a |
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manufacturing facility solely for the purposes of treating its |
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employees and contractors; |
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(2) temporary emergency clinics in disaster areas; |
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(3) an office or clinic of a licensed physician, |
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dentist, optometrist, or podiatrist; |
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(4) a licensed nursing home; |
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(5) a licensed hospital; |
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(6) a hospital that is owned and operated by this |
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state; |
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(7) a facility located within or connected to a |
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hospital described by Subsection (5) or (6); |
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(8) a facility that is owned or operated by a hospital |
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described by Subsection (5) or (6) and is: |
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(A) surveyed as a service of the hospital by an |
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organization that has been granted deeming authority as a national |
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accreditation program for hospitals by the Centers for Medicare and |
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Medicaid Services; or |
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(B) granted provider-based status by the Centers |
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for Medicare and Medicaid Services; or |
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(9) a licensed ambulatory surgical center. |
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Sec. 254.053. LICENSE APPLICATION AND ISSUANCE. (a) An |
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applicant for a license under this chapter must submit an |
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application to the department on a form prescribed by the |
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department. |
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(b) Each application must be accompanied by a nonrefundable |
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license fee in an amount set by the executive commissioner. |
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(c) The application must contain evidence that there is at |
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least one physician and one nurse on the staff of the facility who |
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are licensed by the appropriate state licensing board. |
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(d) The application must contain evidence that the facility |
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meets the minimum standards and requirements specified in Section |
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254.151. |
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(e) The department shall issue a license if, after |
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inspection and investigation, it finds that the applicant and the |
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facility meet the requirements of this chapter and the standards |
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adopted under this chapter. |
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(f) The license fee must be paid annually on renewal of the |
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license. |
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[Sections 254.054-254.100 reserved for expansion] |
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SUBCHAPTER C. EXECUTIVE COMMISSIONER AND DEPARTMENT POWERS AND |
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DUTIES |
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Sec. 254.101. ADOPTION OF RULES. The executive |
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commissioner shall adopt rules necessary to implement this chapter, |
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including requirements for the issuance, renewal, denial, |
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suspension, and revocation of a license to operate a facility. |
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Sec. 254.102. FEES. The executive commissioner shall set |
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fees imposed by this chapter in amounts reasonable and necessary to |
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defray the cost of administering this chapter. |
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Sec. 254.103. INSPECTIONS. The department may inspect a |
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facility at reasonable times as necessary to ensure compliance with |
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this chapter. |
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Sec. 254.104. FREESTANDING EMERGENCY MEDICAL CARE FACILITY |
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LICENSING FUND. All fees collected under this chapter shall be |
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deposited in the state treasury to the credit of the freestanding |
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emergency medical care facility licensing fund and may be |
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appropriated to the department only to administer and enforce this |
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chapter. |
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[Sections 254.105-254.150 reserved for expansion] |
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SUBCHAPTER D. REGULATION OF FACILITIES |
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Sec. 254.151. MINIMUM STANDARDS. (a) The executive |
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commissioner shall adopt rules necessary to implement this chapter, |
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including minimum standards for: |
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(1) the construction and design of the facility, |
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including plumbing, heating, lighting, ventilation, and other |
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design standards necessary to ensure the health and safety of |
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patients; |
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(2) the number, qualifications, and organization of |
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the professional staff and other personnel; |
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(3) the administration of the facility; |
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(4) the equipment essential to the health and welfare |
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of the patients; |
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(5) the sanitary and hygienic conditions within the |
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facility and its surroundings; |
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(6) the requirements for the contents, maintenance, |
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and release of medical records; |
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(7) the minimal level of care and standards for denial |
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of care; |
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(8) the provision of laboratory and radiological |
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services; |
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(9) the distribution and administration of drugs and |
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controlled substances; |
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(10) a quality assurance program for patient care; |
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(11) disclosure, if applicable, of the following: |
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(A) the name and social security number of the |
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sole proprietor, if the facility is a sole proprietor; |
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(B) the name and social security number of each |
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general partner who is an individual, if the facility is a |
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partnership; |
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(C) the name and social security number of any |
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individual who has an ownership interest of more than 25 percent in |
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the corporation, if the facility is a corporation; and |
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(D) the name and license numbers of any |
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physicians licensed by the Texas Medical Board who have a financial |
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interest in the facility or any entity which has an ownership |
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interest in the facility; |
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(12) transfer protocols for patients requiring |
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advanced medical care at a hospital; and |
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(13) any other aspect of the operation of a facility |
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that the executive commissioner considers necessary to protect the |
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facility's patients and the public. |
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(b) In adopting the rules required under Subsection (a) |
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concerning transfer protocols, the executive commissioner must |
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consult with physicians who provide emergency care, medical |
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consultant organizations, and organizations representing hospitals |
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licensed in this state. |
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(c) The minimum standards under this section shall apply to |
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facilities operating 24 hours a day and 7 days per week and |
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facilities operating less than 24 hours a day and 7 days per week. |
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Sec. 254.152. FACILITIES NOT IN CONTINUOUS OPERATION. |
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(a) A facility that is not in continuous operation shall display a |
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clearly visible sign that: |
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(1) indicates whether the facility is open or closed; |
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(2) provides information regarding the facility's |
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operating hours; and |
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(3) provides clear instructions directing a patient to |
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an emergency room in a licensed hospital or a freestanding |
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emergency room classified as a facility that is in continuous |
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operation within 10 miles of the facility that is not in continuous |
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operation. |
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(b) A facility that is not in continuous operation may not |
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advertise, market, or otherwise promote the services provided by |
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the facility using the term "emergency" or any similar term defined |
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by department rule. |
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(c) Notwithstanding Subsection (b), a facility that is not |
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in continuous operation is not required to comply with Subsection |
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(b) until the earlier of the second anniversary of the date the |
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facility is issued a license under this chapter or September 1, |
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2012. This subsection expires January 1, 2013. |
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(d) This section expires August 31, 2013. |
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Sec. 254.153. FACILITY CARE REQUIREMENTS. (a) A facility |
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shall provide to each facility patient, without regard to the |
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individual's ability to pay, an appropriate medical screening, |
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examination, and stabilization within the facility's capability, |
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including ancillary services routinely available to the facility, |
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to determine whether an emergency medical condition exists and any |
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necessary stabilizing treatment. |
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(b) Before a facility accepts any patient for treatment or |
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diagnosis, the facility shall enter into a referral, transmission, |
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or admission agreement with a hospital licensed in this state. |
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Sec. 254.154. COMPLAINTS. A person may file a complaint |
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with the department against a facility licensed under this chapter. |
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[Sections 254.155-254.200 reserved for expansion] |
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SUBCHAPTER E. ENFORCEMENT AND PENALTIES |
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Sec. 254.201. DENIAL, SUSPENSION, PROBATION, OR REVOCATION |
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OF LICENSE. (a) The department may deny, suspend, or revoke a |
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license for a violation of this chapter or a rule adopted under this |
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chapter. |
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(b) The denial, suspension, or revocation of a license by |
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the department and the appeal from that action are governed by the |
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procedures for a contested case hearing under Chapter 2001, |
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Government Code. |
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(c) If the department finds that a facility is in repeated |
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noncompliance with this chapter or rules adopted under this chapter |
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but that the noncompliance does not endanger public health and |
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safety, the department may schedule the facility for probation |
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rather than suspending or revoking the facility's license. The |
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department shall provide notice to the facility of the probation |
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and of the items of noncompliance not later than the 10th day before |
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the date the probation period begins. The department shall |
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designate a period of not less than 30 days during which the |
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facility remains under probation. During the probation period, the |
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facility must correct the items that were in noncompliance and |
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report the corrections to the department for approval. |
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(d) The department may suspend or revoke the license of a |
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facility that does not correct items that were in noncompliance or |
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that does not comply with this chapter or the rules adopted under |
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this chapter within the applicable probation period. |
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Sec. 254.202. EMERGENCY SUSPENSION. (a) The department |
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may issue an emergency order to suspend a license issued under this |
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chapter if the department has reasonable cause to believe that the |
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conduct of a license holder creates an immediate danger to the |
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public health and safety. |
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(b) An emergency suspension under this section is effective |
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immediately without a hearing on notice to the license holder. |
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(c) On written request of the license holder, the department |
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shall conduct a hearing not earlier than the 10th day or later than |
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the 30th day after the date the hearing request is received to |
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determine if the emergency suspension is to be continued, modified, |
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or rescinded. |
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(d) A hearing and any appeal under this section are governed |
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by the department's rules for a contested case hearing and Chapter |
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2001, Government Code. |
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Sec. 254.203. INJUNCTION. (a) The department may petition |
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a district court for a temporary restraining order to restrain a |
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continuing violation of the standards or licensing requirements |
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provided under this chapter if the department finds that the |
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violation creates an immediate threat to the health and safety of |
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the patients of a facility. |
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(b) A district court, on petition of the department and on a |
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finding by the court that a person is violating the standards or |
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licensing requirements provided under this chapter, may by |
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injunction: |
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(1) prohibit a person from continuing a violation of |
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the standards or licensing requirements provided under this |
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chapter; |
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(2) restrain or prevent the establishment or operation |
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of a facility without a license issued under this chapter; or |
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(3) grant any other injunctive relief warranted by the |
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facts. |
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(c) The attorney general shall institute and conduct a suit |
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authorized by this section at the request of the department. |
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(d) Venue for a suit brought under this section is in the |
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county in which the facility is located or in Travis County. |
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Sec. 254.204. CRIMINAL PENALTY. (a) A person commits an |
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offense if the person violates Section 254.051. |
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(b) An offense under this section is a Class C misdemeanor. |
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(c) Each day of a continuing violation constitutes a |
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separate offense. |
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Sec. 254.205. IMPOSITION OF ADMINISTRATIVE PENALTY. |
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(a) The department may impose an administrative penalty on a |
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person licensed under this chapter who violates this chapter or a |
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rule or order adopted under this chapter. A penalty collected under |
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this section or Section 254.206 shall be deposited in the state |
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treasury in the general revenue fund. |
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(b) A proceeding to impose the penalty is considered to be a |
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contested case under Chapter 2001, Government Code. |
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(c) The amount of the penalty may not exceed $1,000 for each |
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violation, and each day a violation continues or occurs is a |
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separate violation for purposes of imposing a penalty. The total |
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amount of the penalty assessed for a violation continuing or |
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occurring on separate days under this subsection may not exceed |
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$5,000. |
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(d) The amount shall be based on: |
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(1) the seriousness of the violation, including the |
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nature, circumstances, extent, and gravity of the violation; |
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(2) the threat to health or safety caused by the |
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violation; |
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(3) the history of previous violations; |
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(4) the amount necessary to deter a future violation; |
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(5) whether the violator demonstrated good faith, |
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including when applicable whether the violator made good faith |
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efforts to correct the violation; and |
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(6) any other matter that justice may require. |
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(e) If the department initially determines that a violation |
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occurred, the department shall give written notice of the report by |
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certified mail to the person. |
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(f) The notice under Subsection (e) must: |
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(1) include a brief summary of the alleged violation; |
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(2) state the amount of the recommended penalty; and |
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(3) inform the person of the person's right to a |
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hearing on the occurrence of the violation, the amount of the |
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penalty, or both. |
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(g) Within 20 days after the date the person receives the |
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notice under Subsection (e), the person in writing may: |
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(1) accept the determination and recommended penalty |
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of the department; or |
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(2) make a request for a hearing on the occurrence of |
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the violation, the amount of the penalty, or both. |
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(h) If the person accepts the determination and recommended |
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penalty or if the person fails to respond to the notice, the |
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commissioner of state health services by order shall approve the |
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determination and impose the recommended penalty. |
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(i) If the person requests a hearing, the commissioner of |
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state health services shall refer the matter to the State Office of |
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Administrative Hearings, which shall promptly set a hearing date |
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and give written notice of the time and place of the hearing to the |
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person. An administrative law judge of the State Office of |
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Administrative Hearings shall conduct the hearing. |
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(j) The administrative law judge shall make findings of fact |
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and conclusions of law and promptly issue to the commissioner of |
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state health services a proposal for a decision about the |
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occurrence of the violation and the amount of a proposed penalty. |
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(k) Based on the findings of fact, conclusions of law, and |
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proposal for a decision, the commissioner of state health services |
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by order may: |
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(1) find that a violation occurred and impose a |
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penalty; or |
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(2) find that a violation did not occur. |
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(l) The notice of the order under Subsection (k) that is |
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sent to the person in accordance with Chapter 2001, Government |
|
Code, must include a statement of the right of the person to |
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judicial review of the order. |
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Sec. 254.206. PAYMENT AND COLLECTION OF ADMINISTRATIVE |
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PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an |
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order of the commissioner of state health services under Section |
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254.205(k) that imposes an administrative penalty becomes final, |
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the person shall: |
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(1) pay the penalty; or |
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(2) file a petition for judicial review of the |
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commissioner's order contesting the occurrence of the violation, |
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the amount of the penalty, or both. |
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(b) Within the 30-day period prescribed by Subsection (a), a |
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person who files a petition for judicial review may: |
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(1) stay enforcement of the penalty by: |
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(A) paying the penalty to the court for placement |
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in an escrow account; or |
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(B) giving the court a supersedeas bond approved |
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by the court that: |
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(i) is for the amount of the penalty; and |
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(ii) is effective until all judicial review |
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of the commissioner's order is final; or |
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(2) request the court to stay enforcement of the |
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penalty by: |
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(A) filing with the court a sworn affidavit of |
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the person stating that the person is financially unable to pay the |
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penalty and is financially unable to give the supersedeas bond; and |
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(B) sending a copy of the affidavit to the |
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executive commissioner by certified mail. |
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(c) If the commissioner of state health services receives a |
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copy of an affidavit under Subsection (b)(2), the commissioner may |
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file with the court, within five days after the date the copy is |
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received, a contest to the affidavit. The court shall hold a |
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hearing on the facts alleged in the affidavit as soon as practicable |
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and shall stay the enforcement of the penalty on finding that the |
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alleged facts are true. The person who files an affidavit has the |
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burden of proving that the person is financially unable to pay the |
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penalty or to give a supersedeas bond. |
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(d) If the person does not pay the penalty and the |
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enforcement of the penalty is not stayed, the penalty may be |
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collected. The attorney general may sue to collect the penalty. |
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(e) If the court sustains the finding that a violation |
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occurred, the court may uphold or reduce the amount of the penalty |
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and order the person to pay the full or reduced amount of the |
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penalty. |
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(f) If the court does not sustain the finding that a |
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violation occurred, the court shall order that a penalty is not |
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owed. |
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(g) If the person paid the penalty and if the amount of the |
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penalty is reduced or the penalty is not upheld by the court, the |
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court shall order, when the court's judgment becomes final, that |
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the appropriate amount plus accrued interest be remitted to the |
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person within 30 days after the date that the judgement of the court |
|
becomes final. The interest accrues at the rate charged on loans to |
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depository institutions by the New York Federal Reserve Bank. The |
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interest shall be paid for the period beginning on the date the |
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penalty is paid and ending on the date the penalty is remitted. |
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(h) If the person gave a supersedeas bond and the penalty is |
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not upheld by the court, the court shall order, when the court's |
|
judgment becomes final, the release of the bond. If the person gave |
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a supersedeas bond and the amount of the penalty is reduced, the |
|
court shall order the release of the bond after the person pays the |
|
reduced amount. |
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SECTION 2. Section 843.002, Insurance Code, is amended by |
|
amending Subdivision (7) and adding Subdivision (9-a) to read as |
|
follows: |
|
(7) "Emergency care" means health care services |
|
provided in a hospital emergency facility, freestanding emergency |
|
medical care facility, or comparable emergency facility to evaluate |
|
and stabilize medical conditions of a recent onset and severity, |
|
including severe pain, that would lead a prudent layperson |
|
possessing an average knowledge of medicine and health to believe |
|
that the individual's condition, sickness, or injury is of such a |
|
nature that failure to get immediate medical care could: |
|
(A) place the individual's health in serious |
|
jeopardy; |
|
(B) result in serious impairment to bodily |
|
functions; |
|
(C) result in serious dysfunction of a bodily |
|
organ or part; |
|
(D) result in serious disfigurement; or |
|
(E) for a pregnant woman, result in serious |
|
jeopardy to the health of the fetus. |
|
(9-a) "Freestanding emergency medical care facility" |
|
means a facility licensed under Chapter 254, Health and Safety |
|
Code. |
|
SECTION 3. Section 1271.155(b), Insurance Code, is amended |
|
to read as follows: |
|
(b) A health care plan of a health maintenance organization |
|
must provide the following coverage of emergency care: |
|
(1) a medical screening examination or other |
|
evaluation required by state or federal law necessary to determine |
|
whether an emergency medical condition exists shall be provided to |
|
covered enrollees in a hospital emergency facility or comparable |
|
facility; |
|
(2) necessary emergency care shall be provided to |
|
covered enrollees, including the treatment and stabilization of an |
|
emergency medical condition; and |
|
(3) services originated in a hospital emergency |
|
facility, freestanding emergency medical care facility, or |
|
comparable emergency facility following treatment or stabilization |
|
of an emergency medical condition shall be provided to covered |
|
enrollees as approved by the health maintenance organization, |
|
subject to Subsections (c) and (d). |
|
SECTION 4. Section 1301.001, Insurance Code, is amended by |
|
adding Subdivision (12) to read as follows: |
|
(12) "Freestanding emergency medical care facility" |
|
means a facility licensed under Chapter 254, Health and Safety |
|
Code. |
|
SECTION 5. Section 1301.155, Insurance Code, is amended to |
|
read as follows: |
|
Sec. 1301.155. EMERGENCY CARE. (a) In this section, |
|
"emergency care" means health care services provided in a hospital |
|
emergency facility, freestanding emergency medical care facility, |
|
or comparable emergency facility to evaluate and stabilize a |
|
medical condition of a recent onset and severity, including severe |
|
pain, that would lead a prudent layperson possessing an average |
|
knowledge of medicine and health to believe that the person's |
|
condition, sickness, or injury is of such a nature that failure to |
|
get immediate medical care could result in: |
|
(1) placing the person's health in serious jeopardy; |
|
(2) serious impairment to bodily functions; |
|
(3) serious dysfunction of a bodily organ or part; |
|
(4) serious disfigurement; or |
|
(5) in the case of a pregnant woman, serious jeopardy |
|
to the health of the fetus. |
|
(b) If an insured cannot reasonably reach a preferred |
|
provider, an insurer shall provide reimbursement for the following |
|
emergency care services at the preferred level of benefits until |
|
the insured can reasonably be expected to transfer to a preferred |
|
provider: |
|
(1) a medical screening examination or other |
|
evaluation required by state or federal law to be provided in the |
|
emergency facility of a hospital that is necessary to determine |
|
whether a medical emergency condition exists; |
|
(2) necessary emergency care services, including the |
|
treatment and stabilization of an emergency medical condition; and |
|
(3) services originating in a hospital emergency |
|
facility or freestanding emergency medical care facility |
|
following treatment or stabilization of an emergency medical |
|
condition. |
|
SECTION 6. (a) Not later than September 1, 2010, a |
|
freestanding emergency medical care facility must obtain a license |
|
as required by Chapter 254, Health and Safety Code, as added by this |
|
Act. |
|
(b) Not later than March 1, 2010, the executive commissioner |
|
of the Health and Human Services Commission shall adopt rules as |
|
required by Chapter 254, Health and Safety Code, as added by this |
|
Act. |
|
(c) The changes in law made by Sections 3, 4, and 5 of this |
|
Act apply only to a health insurance policy or evidence of coverage |
|
delivered, issued for delivery, or renewed on or after March 1, |
|
2010. A health insurance policy or evidence of coverage delivered, |
|
issued for delivery, or renewed before that date is governed by the |
|
law in effect immediately before that date, and that law is |
|
continued in effect for that purpose. |
|
SECTION 7. (a) Except as provided by Subsections (b) and |
|
(c) of this section, this Act takes effect September 1, 2009. |
|
(b) Sections 254.201, 254.202, 254.203, 254.205, and |
|
254.206, Health and Safety Code, as added by this Act, and Sections |
|
843.002, 1271.155, 1301.001, and 1301.155, Insurance Code, as |
|
amended by this Act, take effect March 1, 2010. |
|
(c) Section 254.204, Health and Safety Code, as added by |
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this Act, takes effect September 1, 2010. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 1357 was passed by the House on May |
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11, 2009, by the following vote: Yeas 145, Nays 0, 2 present, not |
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voting; that the House refused to concur in Senate amendments to |
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H.B. No. 1357 on May 29, 2009, and requested the appointment of a |
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conference committee to consider the differences between the two |
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houses; and that the House adopted the conference committee report |
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on H.B. No. 1357 on May 31, 2009, by the following vote: Yeas 141, |
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Nays 0, 1 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 1357 was passed by the Senate, with |
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amendments, on May 26, 2009, by the following vote: Yeas 31, Nays |
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0; at the request of the House, the Senate appointed a conference |
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committee to consider the differences between the two houses; and |
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that the Senate adopted the conference committee report on H.B. No. |
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1357 on May 31, 2009, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |