85R24143 DMS-D
By: Klick H.B. No. 2116
Substitute the following for H.B. No. 2116:
By: Swanson C.S.H.B. No. 2116
A BILL TO BE ENTITLED
AN ACT
relating to informal dispute resolutions for violations of health
and safety standards at certain long-term care facilities;
authorizing the imposition of costs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 247.051, Health and Safety Code, is
amended by amending Subsections (a), (c), and (d) and adding
Subsection (e) to read as follows:
(a) The executive commissioner by rule shall establish an
informal dispute resolution process to address disputes between an
assisted living [a] facility and the commission [department]
concerning a statement of violations prepared by the commission
[department] in accordance with this section. The process must
provide for adjudication by an appropriate disinterested person of
disputes relating to a statement of violations. 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 commission [department] of the violation of a
standard or standards;
(2) that the [commission to complete the] process be
completed not later than the 90th day after the date of receipt of a
request from the assisted living facility for informal dispute
resolution;
(3) that, not later than the 20th [10th] business day
after the date an assisted living facility requests an informal
dispute resolution, the commission [department] forward to the
assisted living facility a copy of all information referenced [that
is referred to] in the disputed statement of violations or on which
a citation is based in connection with the survey, inspection,
investigation, or other visit, including any notes taken by or
e-mails or messages sent by a commission employee involved with the
survey, inspection, investigation, or other visit and excluding the
following information:
(A) the name of any complainant, witness, or
informant, which must be redacted from information provided to the
assisted living facility;
(B) any information that would reasonably lead to
the identification of a complainant, witness, or informant, which
must be redacted from information provided to the assisted living
facility;
(C) information obtained from or contained in the
records of the facility;
(D) information that is publicly available; or
(E) information that is confidential by law;
(4) that [the commission to give] full consideration
is given to all factual arguments raised during the informal
dispute resolution process [that:
[(A) are supported by references to specific
information that the facility or department relies on to dispute or
support findings in the statement of violations; and
[(B) are provided by the proponent of the
argument to the commission and the opposing party];
(5) that full consideration is given during the
informal dispute resolution process [staff give full
consideration] to the information provided by the assisted living
facility and the commission [department];
(6) that ex parte communications concerning the
substance of any argument relating to a survey, inspection,
investigation, visit, or statement of violations under
consideration not occur between the informal dispute resolution
staff and the assisted living facility or the commission
[department]; [and]
(7) that the assisted living facility and the
commission [department] be given a reasonable opportunity to submit
arguments and information supporting the position of the assisted
living facility or the commission [department] and to respond to
arguments and information presented against them, provided the
assisted living facility submits its arguments and supporting
information not later than the 10th business day after the date of
receipt of the materials provided under Subdivision (3); and
(8) that the commission bears the burden of proving
the violation of a standard or standards.
(c) An assisted living facility requesting an informal
dispute resolution under this section must reimburse the commission
[department] for any costs associated with the commission's
[department's] preparation, copying, and delivery of information
requested by the facility.
(d) A statement of violations prepared by the commission
[department] following a survey, inspection, investigation, or
visit is confidential pending the outcome of the informal dispute
resolution process. Information concerning the outcome of a
survey, inspection, investigation, or visit may be posted on any
website maintained by the commission [department] while the dispute
is pending if the posting clearly notes each finding that is in
dispute.
(e) The commission may charge and the assisted living
facility shall pay the reasonable costs associated with making the
redactions required by Subsections (a)(3)(A) and (B).
SECTION 2. Section 531.058, Government Code, is amended by
amending Subsections (a) and (a-1) and adding Subsection (d) to
read as follows:
(a) The executive commissioner by rule shall establish an
informal dispute resolution process in accordance with this
section. The process must provide for adjudication by an
appropriate disinterested person of disputes relating to a proposed
enforcement action or related proceeding of the commission under
Section 32.021(d), Human Resources Code, or [the Department of
Aging and Disability Services] under Chapter 242, 247, or 252,
Health and Safety Code. The informal dispute resolution process
must require:
(1) an institution or facility to request informal
dispute resolution not later than the 10th calendar day after
notification by the commission [or department, as applicable,] of
the violation of a standard or standards; and
(2) the completion of [commission to complete] the
process not later than:
(A) the 30th calendar day after receipt of a
request from an institution or facility, other than an assisted
living facility, for informal dispute resolution; or
(B) the 90th calendar day after receipt of a
request from an assisted living facility for informal dispute
resolution.
(a-1) As part of the informal dispute resolution process
established under this section, the commission shall contract with
an appropriate disinterested person [who is a nonprofit
organization] to adjudicate disputes between an institution or
facility licensed under Chapter 242, Health and Safety Code, or a
facility licensed under Chapter 247, Health and Safety Code, and
the commission [Department of Aging and Disability Services]
concerning a statement of violations prepared by the commission
[department] in connection with a survey conducted by the
commission [department] of the institution or facility. Section
2009.053 does not apply to the selection of an appropriate
disinterested person under this subsection. The person with whom
the commission contracts shall adjudicate all disputes described by
this subsection.
(d) The rules adopted by the executive commissioner under
Subsection (a) that relate to a dispute described by Section
247.051(a), Health and Safety Code, must incorporate the
requirements of Section 247.051, Health and Safety Code.
SECTION 3. This Act takes effect September 1, 2017.