CHAPTER 243. AMBULATORY SURGICAL CENTERS
HEALTH AND SAFETY CODE
TITLE 4. HEALTH FACILITIES
SUBTITLE B. LICENSING OF HEALTH FACILITIES
CHAPTER 243. AMBULATORY SURGICAL CENTERS
SUBCHAPTER A. GENERAL PROVISIONS; LICENSING AND PENALTIES
Sec. 243.001. SHORT TITLE. This chapter may be cited as the
Texas Ambulatory Surgical Center Licensing Act.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.002. DEFINITIONS. In this chapter:
(1) "Ambulatory surgical center" means a facility that operates
primarily to provide surgical services to patients who do not
require overnight hospital care.
(2) "Board" means the Texas Board of Health.
(3) "Department" means the Texas Department of Health.
(4) "Person" means an individual, firm, partnership,
corporation, or association.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.003. LICENSE REQUIRED. (a) Except as provided by
Section 243.004, a person may not establish or operate an
ambulatory surgical center in this state without a license issued
under this chapter.
(b) Each ambulatory surgical center must have a separate
license.
(c) A license is not transferable or assignable.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.004. EXEMPTIONS FROM LICENSING REQUIREMENT. The
following facilities need not be licensed under this chapter:
(1) an office or clinic of a licensed physician, dentist, or
podiatrist;
(2) a licensed nursing home; or
(3) a licensed hospital.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.005. LICENSE APPLICATION AND ISSUANCE. (a) An
applicant for an ambulatory surgical center license 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 board.
(c) The application must contain evidence that there is at least
one physician, dentist, or podiatrist on the staff of the center
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 center
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.
(f) The department shall issue a renewal license to a center
certified under Title XVIII of the Social Security Act (42 U.S.C.
Section 1395 et seq.) when the center:
(1) remits any annual license fee; and
(2) submits the inspection results or the inspection results
report from the certification body.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.006. INSPECTIONS. (a) The department may inspect an
ambulatory surgical center at reasonable times as necessary to
assure compliance with this chapter.
(b) An ambulatory surgical center licensed by the department and
certified under Title XVIII of the Social Security Act (42 U.S.C.
Section 1395 et seq.) is subject to an on-site licensing
inspection under this chapter once every three years while the
center maintains the certification.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1999, 76th Leg., ch. 1546, Sec. 1, eff. Sept. 1,
1999.
Sec. 243.007. FEES. The board shall set fees imposed by this
chapter in amounts reasonable and necessary to defray the cost of
administering this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.008. AMBULATORY SURGICAL CENTER LICENSING FUND. All
fees collected under this chapter shall be deposited in the state
treasury to the credit of the ambulatory surgical center
licensing fund and may be appropriated to the department only to
administer and enforce this chapter.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.009. ADOPTION OF RULES. The board shall adopt rules
necessary to implement this chapter, including requirements for
the issuance, renewal, denial, suspension, and revocation of a
license to operate an ambulatory surgical center.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.010. MINIMUM STANDARDS. (a) The rules must contain
minimum standards applicable to an ambulatory surgical center and
for:
(1) the construction and design, including plumbing, heating,
lighting, ventilation, and other design standards necessary to
ensure the health and safety of patients;
(2) the qualifications of the professional staff and other
personnel;
(3) the equipment essential to the health and welfare of the
patients;
(4) the sanitary and hygienic conditions within the center and
its surroundings; and
(5) a quality assurance program for patient care.
(b) Standards set under this section may not exceed the minimum
standards for certification of ambulatory surgical centers under
Title XVIII of the Social Security Act (42 U.S.C. Section 1395 et
seq.).
(c) This section does not authorize the board to:
(1) establish the qualifications of a licensed practitioner; or
(2) permit a person to provide health care services who is not
authorized to provide those services under another state law.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.011. 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 an ambulatory surgical center
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 center
for probation rather than suspending or revoking the center's
license. The department shall provide notice to the center 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 center will remain under probation. During the
probation period, the center 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 an
ambulatory surgical center 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.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff.
Sept. 1, 1995; Acts 2003, 78th Leg., ch. 802, Sec. 3, 4, eff.
June 20, 2003.
Sec. 243.0115. EMERGENCY SUSPENSION. 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. An emergency suspension is effective
immediately without a hearing on notice to the license holder. 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. The hearing and any appeal are governed
by the department's rules for a contested case hearing and
Chapter 2001, Government Code.
Added by Acts 1999, 76th Leg., ch. 1546, Sec. 2, eff. Sept. 1,
1999.
Sec. 243.012. 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 an ambulatory surgical center.
(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 an
ambulatory surgical center 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 ambulatory surgical center is located or in Travis
County.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.013. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates Section 243.003(a).
(b) An offense under this section is a Class C misdemeanor.
(c) Each day of a continuing violation constitutes a separate
offense.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.014. CIVIL PENALTY. (a) A person who violates this
chapter or who fails to comply with a rule adopted under this
chapter is liable for a civil penalty of not less than $100 or
more than $500 for each violation if the department determines
the violation threatens the health and safety of a patient.
(b) Each day of a continuing violation constitutes a separate
ground for recovery.
Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.
Sec. 243.015. 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 243.016 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 public health by order shall approve the
determination and impose the recommended penalty.
(i) If the person requests a hearing, the commissioner of public
health 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
public health 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 public health 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 commissioner's 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.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 3.01, eff. Sept. 1,
1999.
Sec. 243.016. PAYMENT AND COLLECTION OF ADMINISTRATIVE PENALTY;
JUDICIAL REVIEW. (a) Within 30 days after the date an order of
the commissioner of public health under Section 243.015(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 commissioner of
public health by certified mail.
(c) If the commissioner of public health 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.
Added by Acts 1999, 76th Leg., ch. 1411, Sec. 3.01, eff. Sept. 1,
1999.