CHAPTER 254. FREESTANDING EMERGENCY MEDICAL CARE FACILITIES

State Codes and Statutes

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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.

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.

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;

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.

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.

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.

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.

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.

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.

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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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