Texas 2013 - 83rd Regular

Texas House Bill HB33 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Menendez (Senate Sponsor - Uresti) H.B. No. 33
2	2	(In the Senate - Received from the House April 22, 2013;
3	3	April 24, 2013, read first time and referred to Committee on Health
4	4	and Human Services; May 13, 2013, reported favorably by the
5	5	following vote: Yeas 8, Nays 0; May 13, 2013, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to alternative methods of dispute resolution in certain
11	11	disputes between the Department of Aging and Disability Services
12	12	and an assisted living facility licensed by the department.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Section 247.051, Health and Safety Code, is
15	15	amended to read as follows:
16	16	Sec. 247.051. INFORMAL DISPUTE RESOLUTION. (a) The Health
17	17	and Human Services Commission by rule shall establish an informal
18	18	dispute resolution process to address disputes between a facility
19	19	and the department concerning a statement of violations prepared by
20	20	the department in accordance with this section. The process must
21	21	provide for adjudication by an appropriate disinterested person of
22	22	disputes relating to a statement of violations [a proposed
23	23	enforcement action or related proceeding under this chapter]. The
24	24	informal dispute resolution process must require:
25	25	(1) the assisted living facility to request informal
26	26	dispute resolution not later than the 10th day after the date of
27	27	notification by the department of the violation of a standard or
28	28	standards;
29	29	(2) the Health and Human Services Commission to
30	30	complete the process not later than the 90th [30th] day after the
31	31	date of receipt of a request from the assisted living facility for
32	32	informal dispute resolution; [and]
33	33	(3) that, not later than the 10th business day after
34	34	the date an assisted living facility requests an informal dispute
35	35	resolution, the department forward to the assisted living facility
36	36	a copy of all information that is referred to in the disputed
37	37	statement of violations or on which a citation is based in
38	38	connection with the survey, inspection, investigation, or other
39	39	visit, excluding:
40	40	(A) the name of any complainant, witness, or
41	41	informant;
42	42	(B) any information that would reasonably lead to
43	43	the identification of a complainant, witness, or informant;
44	44	(C) information obtained from or contained in the
45	45	records of the facility;
46	46	(D) information that is publicly available; or
47	47	(E) information that is confidential by law;
48	48	(4) the Health and Human Services Commission to give
49	49	full consideration to all factual arguments raised during the
50	50	informal dispute resolution process that:
51	51	(A) are supported by references to specific
52	52	information that the facility or department relies on to dispute or
53	53	support findings in the statement of violations; and
54	54	(B) are provided by the proponent of the argument
55	55	to the Health and Human Services Commission and the opposing party;
56	56	(5) that informal dispute resolution staff give full
57	57	consideration to the information provided by the assisted living
58	58	facility and the department;
59	59	(6) that ex parte communications concerning the
60	60	substance of any argument relating to a survey, inspection,
61	61	investigation, visit, or statement of violations under
62	62	consideration not occur between the informal dispute resolution
63	63	staff and the assisted living facility or the department; and
64	64	(7) that the assisted living facility and the
65	65	department be given a reasonable opportunity to submit arguments
66	66	and information supporting the position of the assisted living
67	67	facility or the department and to respond to arguments and
68	68	information presented against them.
69	69	(b) [any individual representing an assisted living
70	70	facility in an informal dispute resolution process to register with
71	71	the Health and Human Services Commission and disclose the
72	72	following:
73	73	[(A) the individual's employment history during
74	74	the preceding five years, including employment in regulatory
75	75	agencies of this state and other states;
76	76	[(B) ownership, including the identity of the
77	77	controlling person or persons, of the assisted living facility the
78	78	individual is representing before the Health and Human Services
79	79	Commission; and
80	80	[(C) the identity of other entities the
81	81	individual represents or has represented before the Health and
82	82	Human Services Commission during the preceding 24 months.
83	83	[(b) The Health and Human Services Commission shall adopt
84	84	rules to adjudicate claims in contested cases.
85	85	[(c)] The Health and Human Services Commission may not
86	86	delegate its responsibility to administer the informal dispute
87	87	resolution process established by this section to another state
88	88	agency.
89	89	(c) An assisted living facility requesting an informal
90	90	dispute resolution under this section must reimburse the department
91	91	for any costs associated with the department's preparation,
92	92	copying, and delivery of information requested by the facility.
93	93	(d) A statement of violations prepared by the department
94	94	following a survey, inspection, investigation, or visit is
95	95	confidential pending the outcome of the informal dispute resolution
96	96	process. Information concerning the outcome of a survey,
97	97	inspection, investigation, or visit may be posted on any website
98	98	maintained by the department while the dispute is pending if the
99	99	posting clearly notes each finding that is in dispute.
100	100	SECTION 2. Chapter 247, Health and Safety Code, is amended
101	101	by adding Subchapter E to read as follows:
102	102	SUBCHAPTER E. ARBITRATION
103	103	Sec. 247.081. SCOPE OF SUBCHAPTER. This subchapter applies
104	104	to any dispute between a facility licensed under this chapter and
105	105	the department relating to:
106	106	(1) renewal of a license under Section 247.023;
107	107	(2) suspension, revocation, or denial of a license
108	108	under Section 247.041;
109	109	(3) assessment of a civil penalty under Section
110	110	247.045; or
111	111	(4) assessment of an administrative penalty under
112	112	Section 247.0451.
113	113	Sec. 247.082. ELECTION OF ARBITRATION. (a) Except as
114	114	provided by Subsection (d), an affected facility may elect binding
115	115	arbitration of any dispute to which this subchapter applies.
116	116	Arbitration under this subchapter is an alternative to a contested
117	117	case hearing or to a judicial proceeding relating to the assessment
118	118	of a civil penalty.
119	119	(b) An affected facility may elect arbitration under this
120	120	subchapter by filing the election with the court in which the
121	121	lawsuit is pending and sending notice of the election to the
122	122	department and the office of the attorney general. The election
123	123	must be filed not later than the 10th day after the date on which the
124	124	answer is due or the date on which the answer is filed, whichever is
125	125	earlier. If a civil penalty is requested after the initial filing of
126	126	a Section 242.094 action through the filing of an amended or
127	127	supplemental pleading, an affected facility must elect arbitration
128	128	not later than the 10th day after the date on which the amended or
129	129	supplemental pleading is served on the affected facility or the
130	130	facility's counsel.
131	131	(c) The department may elect arbitration under this
132	132	subchapter by filing the election with the court in which the
133	133	lawsuit is pending and by notifying the facility of the election not
134	134	later than the date on which the facility may elect arbitration
135	135	under Subsection (b).
136	136	(d) Arbitration may not be used to resolve a dispute related
137	137	to an affected facility that has had an arbitration award levied
138	138	against it in the previous five years.
139	139	(e) If arbitration is not permitted under this subchapter or
140	140	the election of arbitration is not timely filed:
141	141	(1) the court shall dismiss the arbitration election
142	142	and retain jurisdiction of the lawsuit; and
143	143	(2) the State Office of Administrative Hearings shall
144	144	dismiss the arbitration and does not have jurisdiction over the
145	145	lawsuit.
146	146	(f) An election to engage in arbitration under this
147	147	subchapter is irrevocable and binding on the facility and the
148	148	department.
149	149	Sec. 247.083. ARBITRATION PROCEDURES. (a) The arbitration
150	150	shall be conducted by an arbitrator.
151	151	(b) The arbitration and the appointment of the arbitrator
152	152	shall be conducted in accordance with rules adopted by the chief
153	153	administrative law judge of the State Office of Administrative
154	154	Hearings. Before adopting rules under this subsection, the chief
155	155	administrative law judge shall consult with the department and
156	156	shall consider appropriate rules developed by any nationally
157	157	recognized association that performs arbitration services.
158	158	(c) The party that elects arbitration shall pay the cost of
159	159	the arbitration. The total fees and expenses paid for an arbitrator
160	160	for a day may not exceed $1,000.
161	161	(d) The State Office of Administrative Hearings may
162	162	designate a nationally recognized association that performs
163	163	arbitration services to conduct arbitrations under this subchapter
164	164	and may, after consultation with the department, contract with that
165	165	association for the arbitrations.
166	166	(e) On request by the department, the attorney general may
167	167	represent the department in the arbitration.
168	168	Sec. 247.084. ARBITRATOR QUALIFICATIONS. Each arbitrator
169	169	must be on an approved list of a nationally recognized association
170	170	that performs arbitration services or be otherwise qualified as
171	171	provided in the rules adopted under Section 247.083(b).
172	172	Sec. 247.085. ARBITRATOR SELECTION. The arbitrator shall
173	173	be appointed in accordance with the rules adopted under Section
174	174	247.083(b).
175	175	Sec. 247.086. ARBITRATOR DUTIES. The arbitrator shall:
176	176	(1) protect the interests of the department and the
177	177	facility;
178	178	(2) ensure that all relevant evidence has been
179	179	disclosed to the arbitrator, department, and facility; and
180	180	(3) render an order consistent with this chapter and
181	181	the rules adopted under this chapter.
182	182	Sec. 247.087. SCHEDULING OF ARBITRATION. (a) The
183	183	arbitrator conducting the arbitration shall schedule arbitration
184	184	to be held not later than the 90th day after the date the arbitrator
185	185	is selected and shall notify the department and the facility of the
186	186	scheduled date.
187	187	(b) The arbitrator may grant a continuance of the
188	188	arbitration at the request of the department or facility. The
189	189	arbitrator may not unreasonably deny a request for a continuance.
190	190	Sec. 247.088. EXCHANGE AND FILING OF INFORMATION. Not
191	191	later than the seventh day before the first day of arbitration, the
192	192	department and the facility shall exchange and file with the
193	193	arbitrator:
194	194	(1) all documentary evidence not previously exchanged
195	195	and filed that is relevant to the dispute; and
196	196	(2) information relating to a proposed resolution of
197	197	the dispute.
198	198	Sec. 247.089. ATTENDANCE. (a) The arbitrator may proceed
199	199	in the absence of any party or representative of a party who, after
200	200	notice of the proceeding, fails to be present or to obtain a
201	201	postponement.
202	202	(b) An arbitrator may not make an order solely on the
203	203	default of a party and shall require the party who is present to
204	204	submit evidence, as required by the arbitrator, before making an
205	205	award.
206	206	Sec. 247.090. TESTIMONY; RECORD. (a) The arbitrator may
207	207	require witnesses to testify under oath and shall require testimony
208	208	under oath if requested by the department or the facility.
209	209	(b) The department shall make an electronic recording of the
210	210	proceeding.
211	211	(c) An official stenographic record of the proceeding is not
212	212	required, but the department or the facility may make a
213	213	stenographic record. The party that makes the stenographic record
214	214	shall pay the expense of having the record made.
215	215	Sec. 247.091. EVIDENCE. (a) The department or the facility
216	216	may offer evidence and shall produce additional evidence as the
217	217	arbitrator considers necessary to understand and resolve the
218	218	dispute.
219	219	(b) The arbitrator is the judge of the relevance and
220	220	materiality of the evidence offered. Strict conformity to rules
221	221	applicable to judicial proceedings is not required.
222	222	Sec. 247.092. CLOSING STATEMENTS; BRIEFS. The department
223	223	and the facility may present closing statements, but the record
224	224	does not remain open for written briefs unless required by the
225	225	arbitrator.
226	226	Sec. 247.093. EX PARTE CONTACTS PROHIBITED. (a) Except as
227	227	provided by Subsection (b), the department and the facility may not
228	228	communicate with an arbitrator other than at an oral hearing unless
229	229	the parties and the arbitrator agree otherwise.
230	230	(b) Any oral or written communication, other than a
231	231	communication authorized under Subsection (a), from the parties to
232	232	an arbitrator shall be directed to the association that is
233	233	conducting the arbitration or, if there is no association
234	234	conducting the arbitration, to the State Office of Administrative
235	235	Hearings for transmittal to the arbitrator.
236	236	Sec. 247.094. ORDER. (a) The arbitrator may enter any
237	237	order that may be entered by the department, board, commissioner,
238	238	or court under this chapter in relation to a dispute described by
239	239	Section 247.081.
240	240	(b) The arbitrator shall enter the order not later than the
241	241	60th day after the last day of the arbitration.
242	242	(c) The arbitrator shall base the order on the facts
243	243	established at arbitration, including stipulations of the parties,
244	244	and on the law as properly applied to those facts.
245	245	(d) The order must:
246	246	(1) be in writing;
247	247	(2) be signed and dated by the arbitrator; and
248	248	(3) include a statement of the arbitrator's decision
249	249	on the contested issues and the department's and facility's
250	250	stipulations on uncontested issues.
251	251	(e) The arbitrator shall file a copy of the order with the
252	252	department and shall notify the department and the facility in
253	253	writing of the decision.
254	254	Sec. 247.095. EFFECT OF ORDER. An order of an arbitrator
255	255	under this subchapter is final and binding on all parties. Except
256	256	as provided by Section 247.097, there is no right to appeal.
257	257	Sec. 247.096. CLERICAL ERROR. For the purpose of
258	258	correcting a clerical error, an arbitrator retains jurisdiction of
259	259	the award until the 20th day after the date of the award.
260	260	Sec. 247.097. COURT VACATING ORDER. (a) On a finding
261	261	described by Subsection (b), a court shall:
262	262	(1) on application of a facility, vacate an
263	263	arbitrator's order with respect to an arbitration conducted at the
264	264	election of the department; or
265	265	(2) on application of the department, vacate an
266	266	arbitrator's order with respect to an arbitration conducted at the
267	267	election of a facility.
268	268	(b) A court shall vacate an arbitrator's order under
269	269	Subsection (a) only on a finding that:
270	270	(1) the order was procured by corruption, fraud, or
271	271	misrepresentation;
272	272	(2) the decision of the arbitrator was arbitrary or
273	273	capricious and against the weight of the evidence; or
274	274	(3) the order exceeded the jurisdiction of the
275	275	arbitrator under Section 247.094(a).
276	276	(c) If the order is vacated, the dispute shall be remanded
277	277	to the department for another arbitration proceeding.
278	278	(d) A suit to vacate an arbitrator's order must be filed not
279	279	later than the 30th day after:
280	280	(1) the date of the award; or
281	281	(2) the date the facility or department knew or should
282	282	have known of a basis for suit under this section, but in no event
283	283	later than the first anniversary of the date of the order.
284	284	(e) Venue for a suit to vacate an arbitrator's order is in
285	285	the county in which the arbitration was conducted.
286	286	Sec. 247.098. ENFORCEMENT OF CERTAIN ARBITRATION ORDERS FOR
287	287	CIVIL PENALTIES. (a) This section applies only to a suit for the
288	288	assessment of a civil penalty under Section 247.045 in which
289	289	binding arbitration has been elected under this subchapter as an
290	290	alternative to the judicial proceeding.
291	291	(b) On application of a party to the suit, the district
292	292	court in which the underlying suit has been filed shall enter a
293	293	judgment in accordance with the arbitrator's order unless, within
294	294	the time limit prescribed by Section 247.097(d)(2), a motion is
295	295	made to the court to vacate the arbitrator's order in accordance
296	296	with Section 247.097.
297	297	(c) A judgment filed under Subsection (b) is enforceable in
298	298	the same manner as any other judgment of the court. The court may
299	299	award costs for an application made under Subsection (b) and for any
300	300	proceedings held after the application is made.
301	301	(d) Subsection (b) does not affect the right of a party, in
302	302	accordance with Section 247.097 and within the time limit
303	303	prescribed by Section 247.097(d)(2), if applicable, to make a
304	304	motion to the court or initiate a proceeding in court as provided by
305	305	law to vacate the arbitrator's order or to vacate a judgment of the
306	306	court entered in accordance with the arbitrator's order.
307	307	SECTION 3. Section 531.058, Government Code, is amended by
308	308	amending Subsection (a) and adding Subsection (d) to read as
309	309	follows:
310	310	(a) The commission by rule shall establish an informal
311	311	dispute resolution process in accordance with this section. The
312	312	process must provide for adjudication by an appropriate
313	313	disinterested person of disputes relating to a proposed enforcement
314	314	action or related proceeding of the Texas Department of Human
315	315	Services under Section 32.021(d), Human Resources Code, or Chapter
316	316	242, 247, or 252, Health and Safety Code. The informal dispute
317	317	resolution process must require:
318	318	(1) an [the] institution or facility to request
319	319	informal dispute resolution not later than the 10th calendar day
320	320	after notification by the department of the violation of a standard
321	321	or standards; and
322	322	(2) the commission to complete the process not later
323	323	than:
324	324	(A) the 30th calendar day after receipt of a
325	325	request from an [the] institution or facility, other than an
326	326	assisted living facility, for informal dispute resolution; or
327	327	(B) the 90th calendar day after receipt of a
328	328	request from an assisted living facility for informal dispute
329	329	resolution[; and
330	330	[(3) any individual representing an institution or
331	331	facility in an informal dispute resolution process to register with
332	332	the commission and disclose the following:
333	333	[(A) the individual's employment history during
334	334	the preceding five years, including employment in regulatory
335	335	agencies of this state and other states;
336	336	[(B) ownership, including the identity of the
337	337	controlling person or persons, of the institution or facility the
338	338	individual is representing before the commission; and
339	339	[(C) the identity of other entities the
340	340	individual represents or has represented before the commission
341	341	during the previous 24 months].
342	342	(d) The commission shall use a negotiated rulemaking
343	343	process and engage a qualified impartial third party as provided by
344	344	Section 2009.053, with the goal of adopting rules that are fair and
345	345	impartial to all parties not later than January 1, 2015. This
346	346	subsection expires September 1, 2015.
347	347	SECTION 4. Section 247.051, Health and Safety Code, as
348	348	amended by this Act, and Section 247.081, Health and Safety Code, as
349	349	added by this Act, apply only to disputes described by those
350	350	sections, as amended or added, that occur on or after the effective
351	351	date of this Act. A dispute that occurs before the effective date
352	352	of this Act is governed by the law applicable to the dispute
353	353	immediately before the effective date of this Act, and that law is
354	354	continued in effect for that purpose.
355	355	SECTION 5. This Act takes effect September 1, 2013.
356	356	* * * * *