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Click here for the full text of this decision FACTS:In 2002, Haltom Medical Investors, which operated Haltom Convalescent Center, began a renovation project. As part of the process, the Department of Human Services inspected the facility in July 2002 and found numerous violations. DHS made a recommendation to the Centers for Medicare and Medicaid Services (CMS) that a $3,050 per day federal civil money penalty be imposed. CMS accepted the recommendation. Haltom waived its right to appeal the fine. CMS reduced the total amount due, and Haltom paid it. In January 2003, DHS sent a letter to the Texas Attorney General asking that office to file suit for civil penalties and any other appropriate relief. The state filed suit on Sept. 17, 2003. Haltom filed a plea to the jurisdiction which was based on interpretation of Health & Safety Code 242.070. The trial court granted Haltom’s plea, and the state appeals. HOLDING:Affirmed. The court explains that under the old version of 242.070, DHS was authorized to assess up to two monetary penalties against a nursing facility that was in violation of the regulations. Then, the Texas Legislature amended the statue by House Bill 2292, so that DHS how can only assess one monetary penalty against a nursing facility for each violation arising out of the same act. The parties disagree over the proper meaning of “assess.” The court finds four plain and common dictionary definitions of the word: 1. to determine the rate or amount of (as a tax, charge, or fine); 2(a). to determine the amount of and impose (as a tax, charge, or fine) according to an established rate or apportionment; 2(b). to subject to a tax, charge, or levy so determined; 3. to make an official valuation or estimate of; or 4. to analyze critically and judge definitely the nature, significance, status, or merit of; determine the importance, size, or value of. The court notes that Haltom’s argument is that the penalty at issue in this case was not assessed prior to Sept. 1, 2003 and still has not been assessed. Haltom argues that no notice or amount has been given concerning the penalty at issue, and that a penalty that has not and cannot be calculated is not a penalty that has been assessed against a facility. Therefore, Haltom contends that the state does not meet definition 2(a). Furthermore, Haltom points out that suit was not filed by the state until Sept. 17, 2003. On the other hand, the state argues that, since DHS determined whether or not to assess penalties and made the recommendation of what penalties to seek before September 1, 2003, it properly assessed the relevant penalties prior to the revised statute’s effective date. The court finds that both the first definition and definition 2(a) could apply to these facts and so finds the term ambiguous. Consequently, the court looks to other uses of the word in the Health & Safety Code and in final report from DHS. With these other uses in mind, the court says it cannot accept the state’s interpretation that “to assess” means the same as “to seek” or “to determine.” DHS did not assess penalties when it recommended to CMS the fine Haltom should pay. OPINION:Holman, J.; Holman, Walker and Mccoy, JJ.

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