82R8291 CAE-F
By: Menendez H.B. No. 2041
A BILL TO BE ENTITLED
AN ACT
relating to alternative methods of dispute resolution in certain
disputes between the Department of Aging and Disability Services
and an assisted living facility licensed by the department.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 247.051, Health and Safety Code, is
amended to read as follows:
Sec. 247.051. INFORMAL DISPUTE RESOLUTION. (a) The Health
and Human Services Commission by rule shall establish an informal
dispute resolution process to address disputes between a facility
and the department as a result of the survey review conducted by the
department in accordance with this section. The process must
provide for adjudication by an appropriate disinterested person of
disputes relating to the results of a survey [a proposed
enforcement action or related proceeding under this chapter]. The
informal dispute resolution process must require:
(1) the assisted living facility to request informal
dispute resolution not later than the 10th day after the date of
notification by the department of the violation of a standard or
standards;
(2) the Health and Human Services Commission to
complete the process not later than the 90th [30th] day after the
date of receipt of a request from the assisted living facility for
informal dispute resolution; [and]
(3) any individual representing an assisted living
facility or the department in an informal dispute resolution
process to register with the Health and Human Services Commission;
(4) the department to prove a violation of a standard;
(5) that, not later than the fifth business day after
the date an assisted living facility requests an informal dispute
resolution, the department forward to the assisted living facility
and to the Health and Human Services Commission a copy of all
information prepared or gathered by the department in connection
with the survey, excluding the name of any person who may have filed
a complaint in connection with the survey;
(6) that all legal and factual arguments raised during
the informal dispute resolution process be fully considered and
impartially decided;
(7) that a presumption of truth not be given to a
statement contained in the department's statement of deficiencies;
(8) that ex parte communications concerning the
substance of any argument relating to a survey under consideration
not occur between the informal dispute resolution staff and another
person;
(9) that the assisted living facility and the
department be given a reasonable opportunity to submit arguments
and evidence and to respond to arguments and evidence presented
against them; and
(10) that an architect or engineer with experience
with life safety code issues affecting assisted living facilities
decide disputes relating to life safety code issues.
(b) Unless arbitration is elected in accordance with
Subchapter E, the [and disclose the following:
[(A) the individual's employment history during
the preceding five years, including employment in regulatory
agencies of this state and other states;
[(B) ownership, including the identity of the
controlling person or persons, of the assisted living facility the
individual is representing before the Health and Human Services
Commission; and
[(C) the identity of other entities the
individual represents or has represented before the Health and
Human Services Commission during the preceding 24 months.
[(b) The Health and Human Services Commission shall adopt
rules to adjudicate claims in contested cases.
[(c) The] Health and Human Services Commission may not
delegate its responsibility to administer the informal dispute
resolution process established by this section to another state
agency.
(c) A statement of deficiency prepared by the department
following a survey is confidential pending the outcome of the
informal dispute resolution process. Information concerning the
outcome of a survey may not be posted by the department on any
website pending the outcome of the informal dispute resolution
process.
SECTION 2. Chapter 247, Health and Safety Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. ARBITRATION
Sec. 247.081. SCOPE OF SUBCHAPTER. This subchapter applies
to any dispute between a facility licensed under this chapter and
the department relating to:
(1) renewal of a license under Section 247.023;
(2) suspension or revocation of a license under
Section 247.041;
(3) assessment of a civil penalty under Section
247.045;
(4) assessment of an administrative penalty under
Section 247.0451; or
(5) an informal dispute resolution under Section
247.051.
Sec. 247.082. ARBITRATION PROCEDURES. (a) The arbitration
shall be conducted by an arbitrator.
(b) The arbitration and the appointment of the arbitrator
shall be conducted in accordance with rules adopted by the chief
administrative law judge of the State Office of Administrative
Hearings. Before adopting rules under this subsection, the chief
administrative law judge shall consult with the department and
shall consider appropriate rules developed by any nationally
recognized association that performs arbitration services.
(c) The party that elects arbitration shall pay the cost of
the arbitration. The total fees and expenses paid for an arbitrator
for a day may not exceed $1,000.
(d) The State Office of Administrative Hearings may
designate a nationally recognized association that performs
arbitration services to conduct arbitrations under this subchapter
and may, after consultation with the department, contract with that
association for the arbitrations.
(e) On request by the department, the attorney general may
represent the department in the arbitration.
Sec. 247.083. ARBITRATOR QUALIFICATIONS. Each arbitrator
must be on an approved list of a nationally recognized association
that performs arbitration services or be otherwise qualified as
provided in the rules adopted under Section 247.082(b).
Sec. 247.084. ARBITRATOR SELECTION. The arbitrator shall
be appointed in accordance with the rules adopted under Section
247.082(b).
Sec. 247.085. ARBITRATOR DUTIES. The arbitrator shall:
(1) protect the interests of the department and the
facility;
(2) ensure that all relevant evidence has been
disclosed to the arbitrator, department, and facility; and
(3) render an order consistent with this chapter and
the rules adopted under this chapter.
Sec. 247.086. SCHEDULING OF ARBITRATION. (a) The
arbitrator conducting the arbitration shall schedule arbitration
to be held not later than the 90th day after the date the arbitrator
is selected and shall notify the department and the facility of the
scheduled date.
(b) The arbitrator may grant a continuance of the
arbitration at the request of the department or facility. The
arbitrator may not unreasonably deny a request for a continuance.
Sec. 247.087. EXCHANGE AND FILING OF INFORMATION. Not
later than the seventh day before the first day of arbitration, the
department and the facility shall exchange and file with the
arbitrator:
(1) all documentary evidence not previously exchanged
and filed that is relevant to the dispute; and
(2) information relating to a proposed resolution of
the dispute.
Sec. 247.088. ATTENDANCE. (a) The arbitrator may proceed
in the absence of any party or representative of a party who, after
notice of the proceeding, fails to be present or to obtain a
postponement.
(b) An arbitrator may not make an order solely on the
default of a party and shall require the party who is present to
submit evidence, as required by the arbitrator, before making an
award.
Sec. 247.089. TESTIMONY; RECORD. (a) The arbitrator may
require witnesses to testify under oath and shall require testimony
under oath if requested by the department or the facility.
(b) The department shall make an electronic recording of the
proceeding.
(c) An official stenographic record of the proceeding is not
required, but the department or the facility may make a
stenographic record. The party that makes the stenographic record
shall pay the expense of having the record made.
Sec. 247.090. EVIDENCE. (a) The department or the facility
may offer evidence and shall produce additional evidence as the
arbitrator considers necessary to understand and resolve the
dispute.
(b) The arbitrator is the judge of the relevance and
materiality of the evidence offered. Strict conformity to rules
applicable to judicial proceedings is not required.
Sec. 247.091. CLOSING STATEMENTS; BRIEFS. The department
and the facility may present closing statements, but the record
does not remain open for written briefs unless required by the
arbitrator.
Sec. 247.092. EX PARTE CONTACTS PROHIBITED. (a) Except as
provided by Subsection (b), the department and the facility may not
communicate with an arbitrator other than at an oral hearing unless
the parties and the arbitrator agree otherwise.
(b) Any oral or written communication, other than a
communication authorized under Subsection (a), from the parties to
an arbitrator shall be directed to the association that is
conducting the arbitration or, if there is no association
conducting the arbitration, to the State Office of Administrative
Hearings for transmittal to the arbitrator.
Sec. 247.093. ORDER. (a) The arbitrator may enter any
order that may be entered by the department, board, commissioner,
or court under this chapter in relation to a dispute described by
Section 247.081.
(b) The arbitrator shall enter the order not later than the
60th day after the last day of the arbitration.
(c) The arbitrator shall base the order on the facts
established at arbitration, including stipulations of the parties,
and on the law as properly applied to those facts.
(d) The order must:
(1) be in writing;
(2) be signed and dated by the arbitrator; and
(3) include a statement of the arbitrator's decision
on the contested issues and the department's and facility's
stipulations on uncontested issues.
(e) The arbitrator shall file a copy of the order with the
department and shall notify the department and the facility in
writing of the decision.
Sec. 247.094. EFFECT OF ORDER. An order of an arbitrator
under this subchapter is final and binding on all parties. Except
as provided by Section 247.096, there is no right to appeal.
Sec. 247.095. CLERICAL ERROR. For the purpose of
correcting a clerical error, an arbitrator retains jurisdiction of
the award until the 20th day after the date of the award.
Sec. 247.096. COURT VACATING ORDER. (a) On a finding
described by Subsection (b), a court shall:
(1) on application of a facility, vacate an
arbitrator's order with respect to an arbitration conducted at the
election of the department; or
(2) on application of the department, vacate an
arbitrator's order with respect to an arbitration conducted at the
election of a facility.
(b) A court shall vacate an arbitrator's order under
Subsection (a) only on a finding that:
(1) the order was procured by corruption, fraud, or
misrepresentation;
(2) the decision of the arbitrator was arbitrary or
capricious and against the weight of the evidence; or
(3) the order exceeded the jurisdiction of the
arbitrator under Section 247.093(a).
(c) If the order is vacated, the dispute shall be remanded
to the department for another arbitration proceeding.
(d) A suit to vacate an arbitrator's order must be filed not
later than the 30th day after:
(1) the date of the award; or
(2) the date the facility or department knew or should
have known of a basis for suit under this section, but in no event
later than the first anniversary of the date of the order.
(e) Venue for a suit to vacate an arbitrator's order is in
the county in which the arbitration was conducted.
Sec. 247.097. ENFORCEMENT OF CERTAIN ARBITRATION ORDERS FOR
CIVIL PENALTIES. (a) This section applies only to a suit for the
assessment of a civil penalty under Section 247.045 in which
binding arbitration has been elected under this subchapter as an
alternative to the judicial proceeding.
(b) On application of a party to the suit, the district
court in which the underlying suit has been filed shall enter a
judgment in accordance with the arbitrator's order unless, within
the time limit prescribed by Section 247.096(d)(2), a motion is
made to the court to vacate the arbitrator's order in accordance
with Section 247.096.
(c) A judgment filed under Subsection (b) is enforceable in
the same manner as any other judgment of the court. The court may
award costs for an application made under Subsection (b) and for any
proceedings held after the application is made.
(d) Subsection (b) does not affect the right of a party, in
accordance with Section 247.096 and within the time limit
prescribed by Section 247.096(d)(2), if applicable, to make a
motion to the court or initiate a proceeding in court as provided by
law to vacate the arbitrator's order or to vacate a judgment of the
court entered in accordance with the arbitrator's order.
SECTION 3. The changes in law made by this Act apply only to
a dispute described by Section 247.051, Health and Safety Code, as
amended by this Act, or Section 247.081, Health and Safety Code, as
added by this Act, that occurs on or after the effective date of
this Act. A dispute that occurs before the effective date of this
Act is governed by the law in effect immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 4. This Act takes effect September 1, 2011.