(a) The department may deny, suspend, or revoke a license if the licensee or the center:

(1) violates a provision of Texas Birthing Center Licensing Act, Health and Safety Code, Chapter 244;

(2) fails to meet a requirement of this chapter;

(3) fails to comply with an order of the commissioner of health or another enforcement procedure under the Act;

(4) is involved in any action as described in §137.11(a)(3)(J) - (K) of this title (relating to Application Procedures and Issuance of Licenses); or

(5) has been convicted of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a center. (A) In determining whether a criminal conviction directly relates, the department shall consider the provisions of Texas Occupations Code, Chapter 53. (B) The department may deny a person a license or suspend or revoke an existing license on the grounds that the person has been convicted of a felony or misdemeanor that directly relates to the duties and responsibilities of the ownership or operation of a facility. The department shall apply the requirements of the Texas Occupations Code, Chapter 53. (i) The department is entitled to obtain criminal history information maintained by the Texas Department of Public Safety (Government Code, §411.122), the Federal Bureau of Investigation Identification Division (Government Code, §411.087) or any other law enforcement agency to investigate the eligibility of an applicant for an initial or renewal license and to investigate the continued eligibility of a licensee. (ii) In determining whether a criminal conviction directly relates, the department shall consider the provisions of the Texas Occupations Code, §53.022 and §53.023. (iii) The following felonies and misdemeanors directly relate because these criminal offenses adversely affect a person's ability to own or operate a facility: (I) a misdemeanor or felony involving moral turpitude; (II) a misdemeanor or felony relating to deceptive business practices; (III) a misdemeanor or felony of practicing any health-related profession without a required license; (IV) a misdemeanor or felony under any federal or state law relating to drugs, dangerous drugs, or controlled substances; (V) a misdemeanor or felony under the Texas Penal Code (TPC): (-a-) Title 4 - offenses of attempting or conspiring to commit any of the offenses in this clause; (-b-) Title 5 - offenses against the person; (-c-) Title 7 - offenses against property; (-d-) Title 8 - offenses against public administration; (-e-) Title 9 - offenses against public order and decency; (-f-) Title 10 - offenses against public health, safety or morals; or (-g-) Title 11 - offenses involving organized crime. (VI) offenses listed in clause (iii) of this subparagraph are not exclusive in that the department may consider similar criminal convictions from other state, federal, foreign or military jurisdictions which indicate an inability or tendency for the person to be unable to own or operate a facility. (VII) a license holder's license shall be revoked on the license holder's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision.

(6) fails to comply with applicable requirements within a designated probation period;

(7) has a history of failure to comply with the rules adopted under this chapter;

(8) has aided, abetted or permitted the commission of an illegal act;

(9) has committed fraud, misrepresentation, or concealment of a material fact on any documents required to be submitted to the department or required to be maintained by the facility pursuant to the provisions of this chapter;

(10) fails to pay administrative penalties; or

(11) fails to implement plans of corrections to deficiencies cited by the department.

(b) Notice. If the department proposes to deny, suspend or revoke a license, the department shall send a notice of the proposed action by certified mail, return receipt requested, at the address shown in the current records of the department or the department may personally deliver the notice. The notice to deny, suspend, or revoke a license shall state the alleged facts or conduct to warrant the proposed action, provide an opportunity to demonstrate or achieve compliance, and shall state that the applicant or license holder has an opportunity for a hearing before the action taken is final.

(c) Within 25 days after the date of the notice, the applicant or license holder may notify the department, in writing, of acceptance of the department's determination. If the applicant or license holder does not accept the proposed action, a hearing may be requested. The request for a hearing must be submitted in writing to the Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756.

(1) A hearing shall be conducted pursuant to the Administrative Procedure Act, Texas Government Code, Chapter 2001 and the department's formal hearing procedures in §§1.21, 1.23, 1.25, and 1.27 of this title (relating to Formal Hearing Procedures).

(2) If the applicant or licensee does not request a hearing in writing within 25 days after the date of the notice, the licensee is deemed to have waived the opportunity for a hearing and the proposed action shall be taken.

(3) If the applicant or licensee fails to appear or be represented at the scheduled hearing, the applicant or licensee is deemed to have waived the right to a hearing and the proposed action shall be taken.

(d) A person who has had a center license revoked under this section may not apply for a license under this chapter for one year following the date of revocation.

(e) Probation. In lieu of suspending or revoking the license, the department may schedule the facility for a probation period of not less than 30 days if the facility is found in repeated noncompliance and the facility's noncompliance does not endanger the health and safety of the public.

(f) After a survey in which deficiencies were cited by the surveyor, a center may submit its license for voluntary cancellation in lieu of the department proceeding with enforcement action. The department may accept such submission or reject it and proceed with an enforcement action. The center, its owner(s), and its affiliates may not reapply for a license for six months from the date of the surrender or expiration.

(g) If the department suspends a license, the suspension shall remain in effect until the department determines that the reason for suspension no longer exists. A department surveyor shall conduct a survey of the center prior to making a determination.

(1) During the time of suspension, the suspended license holder shall return the original license certificate to the department.

(2) If a suspension overlaps a renewal date, the suspended license holder shall comply with the renewal procedures in this chapter; however, the department may not renew the license until the department determines that the reason for suspension no longer exists.

(3) If suspension is for more than one year, the suspended license holder may apply to the department for cancellation of the suspension only after one year following the initial date of the suspension.

(h) If the department denies, revokes, or does not renew a license, a person may reapply for a license (subject to subsection (b) of this section), by complying with the requirements and procedures in this chapter at the time of reapplication. The department may refuse to issue a license if the reason for denial, revocation, or non-renewal continues to exist and may consider the enforcement history of the applicant, administrator or clinical director in making such a determination.

(i) Upon revocation or nonrenewal, a license holder shall return the original license certificate to the department.

Source Note: The provisions of this §137.22 adopted to be effective December 2, 2007, 32 TexReg 8507