(a) Imposition of penalty.
  (1) The department may impose an administrative penalty on a person licensed under this chapter who violates the Act, this chapter, or an order adopted under this chapter.
  (2) A penalty collected under this section shall be deposited in the state treasury in the general revenue fund.
  (3) A proceeding to impose the penalty is considered to be a contested case under Government Code, Chapter 2001.
(b) Amount of penalty.
  (1) The amount of the penalty may not exceed $1,000 for each violation. 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 paragraph may not exceed $5,000.
  (2) In determining the amount of an administrative penalty assessed under this section, the department shall consider:
    (A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;
    (B) the threat to health or safety caused by the violation;
    (C) the history of previous violations;
    (D) the amount necessary to deter a future violation;
    (E) whether the violator demonstrated good faith, including whether the violator made good faith efforts to correct the violation; and
    (F) any other matter that justice may require.
(c) Report and notice of violation and penalty.
  (1) If the department initially determines that a violation occurred, the department shall give written notice of the report by certified mail to the person alleged to have committed the violation following the survey exit date.
  (2) The notice must include:
    (A) a brief summary of the alleged violation;
    (B) a statement of the amount of the recommended penalty based on the factors listed in subsection (b)(2) of this section; and
    (C) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.
(d) Penalty to be paid or hearing requested.
  (1) Within 20 calendar days after the date the notice under subsection (c) of this section, is mailed, the person in writing may:
    (A) accept the determination and recommended penalty of the department; or
    (B) make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both; and
    (C) request a pre-hearing conference to discuss the violation.
  (2) If the person accepts the determination and recommended penalty or if the person fails to respond to the notice, the commissioner of health (commissioner) or the commissioner's designee by order shall approve the determination and impose the recommended penalty.
(e) Hearing.
  (1) If the person requests a hearing, it shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001 and the department's formal hearing procedures.
  (2) All hearings shall be held in accordance with the requirements of the Health and Safety Code, Chapter 244.
(f) Options following decision: pay or appeal. Within 30 calendar days after the date the order of the commissioner or commissioner's designee that imposes an administrative penalty becomes final, the person shall:
  (1) pay the penalty; or
  (2) appeal the penalty by filing a petition for judicial review of the commissioner's order contesting the occurrence of the violation, the amount of the penalty, or both; and
  (3) all appeals shall be under the substantial evidence rule.
(g) Stay of enforcement of penalty. Stay of enforcement of penalty shall follow the procedures listed in Health and Safety Code, §244.016.
(h) Collection of penalty. Collection of penalty shall follow the procedure listed in Health and Safety Code, §244.016.
(i) Remittance of penalty and interest. The remittance of penalty and interest is governed by Health and Safety Code, §244.016(g).

Source Note: The provisions of this §137.24 adopted to be effective December 2, 2007, 32 TexReg 8507