By: Isett, Rios Ybarra, Laubenberg, et al. H.B. No. 1357
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of freestanding emergency medical care
facilities; providing an administrative penalty; creating an
offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
amended by adding Chapter 254 to read as follows:
CHAPTER 254. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 254.001. DEFINITIONS. In this chapter:
(1) "Department" means the Department of State Health
Services.
(2) "Emergency care" has the meaning assigned by
Section 843.002, Insurance Code.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(4) "Facility" means a freestanding emergency medical
care facility.
(5) "Freestanding emergency medical care facility"
means a facility, structurally separate and distinct from a
hospital and not affiliated with a hospital licensed under Chapter
241, that receives an individual and provides medical treatment or
stabilization to the individual in an emergency or for a condition
that requires immediate medical care.
[Sections 254.002-254.050 reserved for expansion]
SUBCHAPTER B. LICENSING
Sec. 254.051. LICENSE REQUIRED. (a) Except as provided by
Section 254.052, a person may not establish or operate a
freestanding emergency medical care facility in this state without
a license issued under this chapter.
(b) Except as provided by Section 254.052, a facility or
person may not hold itself out to the public as an emergency medical
facility or use any similar term defined by department rule that
would give the impression that the facility or person is providing
emergency medical care treatment unless the facility or person
holds a license issued under this chapter. The use of the term
"emergency" or a similar term is also subject to Section 254.152.
(c) Each facility must have a separate license.
(d) A license issued under this chapter is not transferable
or assignable.
(e) The executive commissioner by rule shall establish a
classification and license for a facility that is in continuous
operation 24 hours per day and 7 days per week.
(f) The executive commissioner by rule shall establish a
classification and license for a facility that is not in continuous
operation 24 hours per day and 7 days per week. The minimum
operating hours of a facility licensed under this subsection may
not be less than 7 days each week and may not be less than 12 hours
each day. This subsection and any rules adopted by the executive
commissioner under this subsection expire August 31, 2013.
Sec. 254.052. EXEMPTIONS FROM LICENSING REQUIREMENT. The
following facilities are not required to be licensed under this
chapter:
(1) an office or clinic owned and operated by a
manufacturing facility solely for the purposes of treating its
employees and contractors;
(2) temporary emergency clinics in disaster areas;
(3) an office or clinic of a licensed physician,
dentist, optometrist, or podiatrist;
(4) a licensed nursing home;
(5) a licensed hospital; or
(6) a licensed ambulatory surgical center.
Sec. 254.053. LICENSE APPLICATION AND ISSUANCE. (a) An
applicant for a license under this chapter must submit an
application to the department on a form prescribed by the
department.
(b) Each application must be accompanied by a nonrefundable
license fee in an amount set by the executive commissioner.
(c) The application must contain evidence that there is at
least one physician and one nurse on the staff of the facility who
is licensed by the appropriate state licensing board.
(d) The department shall issue a license if, after
inspection and investigation, it finds that the applicant and the
facility meet the requirements of this chapter and the standards
adopted under this chapter.
(e) The license fee must be paid annually on renewal of the
license.
[Sections 254.054-254.100 reserved for expansion]
SUBCHAPTER C. EXECUTIVE COMMISSIONER AND DEPARTMENT POWERS AND
DUTIES
Sec. 254.101. ADOPTION OF RULES. The executive
commissioner shall adopt rules necessary to implement this chapter,
including requirements for the issuance, renewal, denial,
suspension, and revocation of a license to operate a facility.
Sec. 254.102. FEES. The executive commissioner shall set
fees imposed by this chapter in amounts reasonable and necessary to
defray the cost of administering this chapter.
Sec. 254.103. INSPECTIONS. The department may inspect a
facility at reasonable times as necessary to ensure compliance with
this chapter.
Sec. 254.104. FREESTANDING EMERGENCY MEDICAL CARE FACILITY
LICENSING FUND. All fees collected under this chapter shall be
deposited in the state treasury to the credit of the freestanding
emergency medical care facility licensing fund and may be
appropriated to the department only to administer and enforce this
chapter.
[Sections 254.105-254.150 reserved for expansion]
SUBCHAPTER D. REGULATION OF FACILITIES
Sec. 254.151. MINIMUM STANDARDS. Rules adopted under this
chapter must contain minimum standards applicable to a facility and
for:
(1) the construction and design of the facility,
including plumbing, heating, lighting, ventilation, and other
design standards necessary to ensure the health and safety of
patients;
(2) the number, qualifications, and organization of
the professional staff and other personnel;
(3) the administration of the facility;
(4) the equipment essential to the health and welfare
of the patients;
(5) the sanitary and hygienic conditions within the
facility and its surroundings;
(6) the contents, maintenance, and release of medical
records;
(7) the minimal level of care and standards for denial
of care;
(8) the provision of laboratory and radiological
services;
(9) the distribution and administration of drugs and
controlled substances;
(10) a quality assurance program for patient care; and
(11) transfer protocols for patients requiring
advanced medical care at a hospital.
Sec. 254.152. FACILITIES NOT IN CONTINUOUS OPERATION. (a) A
facility that is not in continuous operation shall display a
clearly visible sign that:
(1) indicates whether the facility is open or closed;
(2) provides information regarding the facility's
operating hours; and
(3) provides clear instructions directing a patient to
an emergency room in a licensed hospital or a freestanding
emergency room classified as a facility that is in continuous
operation within 10 miles of the facility that is not in continuous
operation.
(b) A facility that is not in continuous operation may not
advertise, market, or otherwise promote the services provided by
the facility using the term "emergency" or any similar term defined
by department rule.
(c) Notwithstanding Subsection (b), a facility that is not
in continuous operation is not required to comply with Subsection
(b) until the earlier of the second anniversary of the date the
facility is issued a license under this chapter or September 1,
2012. This subsection expires January 1, 2013.
(d) This section expires August 31, 2013.
Sec. 254.153. FACILITY CARE REQUIREMENTS. (a) A facility
shall provide to each facility patient, without regard to the
individual's ability to pay, an appropriate medical screening
examination within the facility's capability, including ancillary
services routinely available to the facility, to determine whether
an emergency medical condition exists.
(b) Before a facility accepts any patient for treatment or
diagnosis, the facility shall enter into a referral, transmission,
or admission agreement with a hospital licensed in this state that
has an emergency room.
[Sections 254.154-254.200 reserved for expansion]
SUBCHAPTER E. ENFORCEMENT AND PENALTIES
Sec. 254.201. DENIAL, SUSPENSION, PROBATION, OR REVOCATION
OF LICENSE. (a) The department may deny, suspend, or revoke a
license for a violation of this chapter or a rule adopted under this
chapter.
(b) The denial, suspension, or revocation of a license by
the department and the appeal from that action are governed by the
procedures for a contested case hearing under Chapter 2001,
Government Code.
(c) If the department finds that a facility is in repeated
noncompliance with this chapter or rules adopted under this chapter
but that the noncompliance does not endanger public health and
safety, the department may schedule the facility for probation
rather than suspending or revoking the facility's license. The
department shall provide notice to the facility of the probation
and of the items of noncompliance not later than the 10th day before
the date the probation period begins. The department shall
designate a period of not less than 30 days during which the
facility remains under probation. During the probation period, the
facility must correct the items that were in noncompliance and
report the corrections to the department for approval.
(d) The department may suspend or revoke the license of a
facility that does not correct items that were in noncompliance or
that does not comply with this chapter or the rules adopted under
this chapter within the applicable probation period.
Sec. 254.202. EMERGENCY SUSPENSION. (a) The department
may issue an emergency order to suspend a license issued under this
chapter if the department has reasonable cause to believe that the
conduct of a license holder creates an immediate danger to the
public health and safety.
(b) An emergency suspension under this section is effective
immediately without a hearing on notice to the license holder.
(c) On written request of the license holder, the department
shall conduct a hearing not earlier than the 10th day or later than
the 30th day after the date the hearing request is received to
determine if the emergency suspension is to be continued, modified,
or rescinded.
(d) A hearing and any appeal under this section are governed
by the department's rules for a contested case hearing and Chapter
2001, Government Code.
Sec. 254.203. INJUNCTION. (a) The department may petition
a district court for a temporary restraining order to restrain a
continuing violation of the standards or licensing requirements
provided under this chapter if the department finds that the
violation creates an immediate threat to the health and safety of
the patients of a facility.
(b) A district court, on petition of the department and on a
finding by the court that a person is violating the standards or
licensing requirements provided under this chapter, may by
injunction:
(1) prohibit a person from continuing a violation of
the standards or licensing requirements provided under this
chapter;
(2) restrain or prevent the establishment or operation
of a facility without a license issued under this chapter; or
(3) grant any other injunctive relief warranted by the
facts.
(c) The attorney general shall institute and conduct a suit
authorized by this section at the request of the department.
(d) Venue for a suit brought under this section is in the
county in which the facility is located or in Travis County.
Sec. 254.204. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates Section 254.051.
(b) An offense under this section is a Class C misdemeanor.
(c) Each day of a continuing violation constitutes a
separate offense.
Sec. 254.205. IMPOSITION OF ADMINISTRATIVE PENALTY. (a)
The department may impose an administrative penalty on a person
licensed under this chapter who violates this chapter or a rule or
order adopted under this chapter. A penalty collected under this
section or Section 254.206 shall be deposited in the state treasury
in the general revenue fund.
(b) A proceeding to impose the penalty is considered to be a
contested case under Chapter 2001, Government Code.
(c) The amount of the penalty may not exceed $1,000 for each
violation, and each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty. The total
amount of the penalty assessed for a violation continuing or
occurring on separate days under this subsection may not exceed
$5,000.
(d) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the threat to health or safety caused by the
violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) whether the violator demonstrated good faith,
including when applicable whether the violator made good faith
efforts to correct the violation; and
(6) any other matter that justice may require.
(e) If the department initially determines that a violation
occurred, the department shall give written notice of the report by
certified mail to the person.
(f) The notice under Subsection (e) must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
(g) Within 20 days after the date the person receives the
notice under Subsection (e), the person in writing may:
(1) accept the determination and recommended penalty
of the department; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(h) If the person accepts the determination and recommended
penalty or if the person fails to respond to the notice, the
commissioner of state health services by order shall approve the
determination and impose the recommended penalty.
(i) If the person requests a hearing, the commissioner of
state health services shall refer the matter to the State Office of
Administrative Hearings, which shall promptly set a hearing date
and give written notice of the time and place of the hearing to the
person. An administrative law judge of the State Office of
Administrative Hearings shall conduct the hearing.
(j) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the commissioner of
state health services a proposal for a decision about the
occurrence of the violation and the amount of a proposed penalty.
(k) Based on the findings of fact, conclusions of law, and
proposal for a decision, the commissioner of state health services
by order may:
(1) find that a violation occurred and impose a
penalty; or
(2) find that a violation did not occur.
(l) The notice of the order under Subsection (k) that is
sent to the person in accordance with Chapter 2001, Government
Code, must include a statement of the right of the person to
judicial review of the order.
Sec. 254.206. PAYMENT AND COLLECTION OF ADMINISTRATIVE
PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
order of the commissioner of state health services under Section
254.205(k) that imposes an administrative penalty becomes final,
the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review of the
commissioner's order contesting the occurrence of the violation,
the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the commissioner's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) sending a copy of the affidavit to the
executive commissioner by certified mail.
(c) If the commissioner of state health services receives a
copy of an affidavit under Subsection (b)(2), the commissioner may
file with the court, within five days after the date the copy is
received, a contest to the affidavit. The court shall hold a
hearing on the facts alleged in the affidavit as soon as practicable
and shall stay the enforcement of the penalty on finding that the
alleged facts are true. The person who files an affidavit has the
burden of proving that the person is financially unable to pay the
penalty or to give a supersedeas bond.
(d) If the person does not pay the penalty and the
enforcement of the penalty is not stayed, the penalty may be
collected. The attorney general may sue to collect the penalty.
(e) If the court sustains the finding that a violation
occurred, the court may uphold or reduce the amount of the penalty
and order the person to pay the full or reduced amount of the
penalty.
(f) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
(g) If the person paid the penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person within 30 days after the date that the judgment of the court
becomes final. The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank. The
interest shall be paid for the period beginning on the date the
penalty is paid and ending on the date the penalty is remitted.
(h) If the person gave a supersedeas bond and the penalty is
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
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.
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.
(d) The Department of State Health Services may not issue a
license under Section 254.051(f), Health and Safety Code, with a
license term that extends beyond August 31, 2013.
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
this Act, takes effect September 1, 2010.