CHAPTER 254. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
HEALTH AND SAFETY CODE
TITLE 4. HEALTH FACILITIES
SUBTITLE B. LICENSING OF HEALTH FACILITIES
CHAPTER 254. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES
Chapter 254 was added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1.
For another Chapter 254 added by Acts 2009, 81st Leg., R.S., Ch.
1106, Sec. 1, see other Chapter 254.
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 Sections
843.002 and 1301.155, 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 that
receives an individual and provides emergency care, as defined by
Subsection (2).
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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 a freestanding emergency
medical care facility or use any similar term, as defined by
department rule, that would give the impression that the facility
or person is providing emergency care 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 separate facility location 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 for a facility that is in continuous operation 24
hours per day and 7 days per week and a classification for a
facility that is in operation 7 days per week and at least 12
hours per day.
(f) A facility that is not in continuous operation 24 hours per
day and 7 days per week cannot be issued a license with a term
that extends beyond August 31, 2013.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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;
(6) a hospital that is owned and operated by this state;
(7) a facility located within or connected to a hospital
described by Subsection (5) or (6);
(8) a facility that is owned or operated by a hospital described
by Subsection (5) or (6) and is:
(A) surveyed as a service of the hospital by an organization
that has been granted deeming authority as a national
accreditation program for hospitals by the Centers for Medicare
and Medicaid Services; or
(B) granted provider-based status by the Centers for Medicare
and Medicaid Services; or
(9) a licensed ambulatory surgical center.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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 are
licensed by the appropriate state licensing board.
(d) The application must contain evidence that the facility
meets the minimum standards and requirements specified in Section
254.151.
(e) 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.
(f) The license fee must be paid annually on renewal of the
license.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
Sec. 254.103. INSPECTIONS. The department may inspect a
facility at reasonable times as necessary to ensure compliance
with this chapter.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
SUBCHAPTER D. REGULATION OF FACILITIES
Sec. 254.151. MINIMUM STANDARDS. (a) The executive
commissioner shall adopt rules necessary to implement this
chapter, including minimum standards 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 requirements for 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;
(11) disclosure, if applicable, of the following:
(A) the name and social security number of the sole proprietor,
if the facility is a sole proprietor;
(B) the name and social security number of each general partner
who is an individual, if the facility is a partnership;
(C) the name and social security number of any individual who
has an ownership interest of more than 25 percent in the
corporation, if the facility is a corporation; and
(D) the name and license numbers of any physicians licensed by
the Texas Medical Board who have a financial interest in the
facility or any entity which has an ownership interest in the
facility;
(12) transfer protocols for patients requiring advanced medical
care at a hospital; and
(13) any other aspect of the operation of a facility that the
executive commissioner considers necessary to protect the
facility's patients and the public.
(b) In adopting the rules required under Subsection (a)
concerning transfer protocols, the executive commissioner must
consult with physicians who provide emergency care, medical
consultant organizations, and organizations representing
hospitals licensed in this state.
(c) The minimum standards under this section shall apply to
facilities operating 24 hours a day and 7 days per week and
facilities operating less than 24 hours a day and 7 days per
week.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
For expiration of this section, see Subsection (d).
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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, and stabilization within the facility's capability,
including ancillary services routinely available to the facility,
to determine whether an emergency medical condition exists and
any necessary stabilizing treatment.
(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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
Sec. 254.154. COMPLAINTS. A person may file a complaint with
the department against a facility licensed under this chapter.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. March 1, 2010.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. March 1, 2010.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. March 1, 2010.
Text of section effective on September 01, 2010
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. September 1, 2010.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. March 1, 2010.
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 judgement 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 2009, 81st Leg., R.S., Ch.
1273, Sec. 1, eff. March 1, 2010.