CHAPTER 243. AMBULATORY SURGICAL CENTERS

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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.

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.

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.).

(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.

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.

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.

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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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