Sec. 161.088. ADMINISTRATIVE PENALTIES. (a) This section applies to the following waiver programs established under Section 1915(c), Social Security Act (42 U.S.C. Section 1396n(c)), and administered by the department to serve persons with an intellectual or developmental disability:
(1) the home and community-based services (HCS) waiver program; and
(2) the Texas home living (TxHmL) waiver program.
(b) The department may assess and collect an administrative penalty against a provider who participates in a program to which this section applies for a violation of a law or rule relating to the program. If the department assesses an administrative penalty against a provider for a violation of a law or rule, the department may not impose a payment hold against or otherwise withhold contract payments from the provider for the same violation of a law or rule.
(c) After consulting with appropriate stakeholders, the executive commissioner shall develop and adopt rules regarding the imposition of administrative penalties under this section. The rules must:
(1) specify the types of violations that warrant imposition of an administrative penalty;
(2) establish a schedule of progressive administrative penalties in accordance with the relative type, frequency, and seriousness of a violation;
(3) prescribe reasonable amounts to be imposed for each violation giving rise to an administrative penalty, subject to Subdivision (4);
(4) authorize the imposition of an administrative penalty in an amount not to exceed $5,000 for each violation;
(5) provide that a provider commits a separate violation each day the provider continues to violate the law or rule;
(6) ensure standard and consistent application of administrative penalties throughout the state; and
(7) provide for an administrative appeals process to adjudicate claims and appeals relating to the imposition of an administrative penalty under this section that is in accordance with Chapter 2001, Government Code.
(d) In specifying the types of violations that warrant imposition of an administrative penalty under Subsection (c), the executive commissioner shall specify the types of minor violations that allow a provider an opportunity to take corrective action before a penalty is imposed.
(e) In establishing the schedule of progressive administrative penalties and penalty amounts under Subsection (c), the executive commissioner must consider:
(1) the seriousness of a violation, including:
(A) the nature, circumstances, extent, and gravity of the violation; and
(B) the hazard to the health or safety of recipients resulting from the violation;
(2) the provider's history of previous violations;
(3) whether the provider:
(A) had prior knowledge of the violation, including whether the provider identified the violation through the provider's internal quality assurance process; and
(B) made any efforts to mitigate or correct the identified violation;
(4) the penalty amount necessary to deter future violations; and
(5) any other matter justice may require.
(f) In lieu of imposing an administrative penalty under this section, the department shall allow a provider found to have committed a minor violation specified by rule in accordance with Subsection (d) to have a reasonable period of time that is not less than 45 days after the date the department sends notice to the provider of the violation to take corrective action regarding the violation. The department may not allow time for corrective action for any violation that is not a minor violation.
Added by Acts 2015, 84th Leg., R.S., Ch. 826 (H.B. 4001), Sec. 15, eff. September 1, 2015.
Added by Acts 2015, 84th Leg., R.S., Ch. 1200 (S.B. 1385), Sec. 1, eff. September 1, 2015.
Last modified: September 28, 2016