BILL ANALYSIS
C.S.H.B. 3118
By: Coleman (Madla)
Health and Human Services
5-25-95
Senate Committee Report (Substituted)
BACKGROUND
Texas entered the intermediate care facilities for people with
mental retardation (ICF/MR) program in 1974 to draw matching
federal funds through the Medicaid program and to improve staff
ratios in Texas Department of Mental Health and Mental Retardation
schools. State laws establishing regulation under the ICF/MR
program, because ICF/MR facilities were originally identified with
nursing facilities as providing large facility-based long-term
services for people with mental retardation, were incorporated into
Chapter 242, Health and Safety Code.
Over the years, national trends and changes in philosophy regarding
services to people with mental retardation have changed
dramatically. The ICF/MR program no longer shares many
characteristics with the Medicaid nursing home program, having
moved away from large, congregate settings to community-based homes
of six beds or fewer. These small facilities not only offer room
and board, but also provide active treatment to help clients
function as independently as possible. In contrast, the trend in
services for residents of nursing facilities has changed little
over the years, except to emphasize medical care and treatment in
larger institutional settings.
PURPOSE
As proposed, C.S.H.B. 3118 removes the intermediate care facilities
for people with mental retardation (ICF/MR) program from Chapter
242, Health and Safety Code, and creates a new Chapter 251, Health
and Safety Code, to support current best practices in delivering
services to people with mental retardation. The bill provides
licensing requirements and sets minimum standards governing ICF/MR
homes.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the Texas Department of Human Services under SECTION 1 (Sections
251.007(a), 251.008, 251.033(e), 251.038(d), 251.065(e), and
251.151, Health and Safety Code) the Texas Board of Health under
SECTION 1 (Sections 251.034, 251.035, 251.036(b), 251.061(b),
251.129(b), and 251.182(b), Health and Safety Code) of this bill,
and the chief administrative law judge of the State Office of
Administrative Hearings under SECTION 1 (Section 251.253(b), Health
and Safety Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Title 4B, Health and Safety Code, by adding
Chapter 251, as follows:
CHAPTER 251. INTERMEDIATE CARE FACILITIES FOR THE MENTALLY RETARDED
SUBCHAPTER B. GENERAL PROVISIONS
Sec. 251.001. PURPOSE. Sets forth the purpose of this
chapter regarding intermediate care facilities for the
mentally retarded (facilities).
Sec. 251.002. DEFINITIONS. Defines "board," "department,"
"designee," "facility," "governmental unit," "person," and
"resident."
Sec. 251.003. EXEMPTIONS. Sets forth a list of
establishments to which the provisions of this chapter do not
apply.
Sec. 251.004. FEDERAL FUNDS. Authorizes the Texas Department
of Human Services (department) to accept and use any funds
allocated by the federal government to the department for
administrative expenses.
Sec. 251.005. LANGUAGE REQUIREMENTS PROHIBITED. Prohibits a
facility from prohibiting a resident or employee from
communicating in the person's native language with another
resident or employee for the purpose of acquiring care,
training, or treatment.
Sec. 251.006. RIGHTS OF RESIDENTS. Requires each facility to
implement and enforce Chapter 102, Human Resources Code.
Sec. 251.007. PAPERWORK REDUCTION RULES. (a) Requires the
department and any designee to adopt rules relating to the
reduction of paperwork.
(b) Requires the department, any designee, and facilities to
work together to review rules and propose changes in
paperwork requirements so that additional time is available
for direct resident care.
Sec. 251.008. RULES. Requires the department to adopt rules
related to the administration and implementation of this
chapter.
Sec. 251.009. CONSULTATION AND COORDINATION. (a) Requires
the department to use the services of and consult with state
and local agencies in carrying out the department's functions
under this chapter, and use the facilities of the department
or a designee.
(b) Authorizes the department to cooperate with local public
health officials of a county or municipality in carrying out
this chapter, and to delegate to those officials the power
to make inspections and recommendations to the department.
(c) Authorizes the department to coordinate its personnel
and facilities with a local agency of a municipality, and to
provide advice to the municipality or county if the
municipality or county decides to supplement the state
program with additional rules required to meet local
conditions.
Sec. 251.010. CHANGE OF ADMINISTRATORS. Requires a facility
that hires a new administrator or other person designated as
the chief management officer for the facility to notify the
department of the change and pay a $20 administrative fee.
SUBCHAPTER B. LICENSING, FEES, AND INSPECTIONS
Sec. 251.031. LICENSE REQUIRED. Prohibits a person or
governmental unit from establishing, conducting, or
maintaining a facility in this state without a license issued
under this chapter.
Sec. 251.032. LICENSE APPLICATION. Sets forth requirements
for an application for a license.
Sec. 251.033. ISSUANCE AND RENEWAL OF LICENSE. (a) Requires
the department to issue a license if, after inspection and
investigation, the department finds that the applicant and
facility meet the requirements under this chapter.
(b) Authorizes the department to issue a license only for
the premises and persons or governmental unit named in the
application, and for the maximum number of beds specified in
the application.
(c) Prohibits a license from being transferred or assigned.
(d) Makes a license renewable on the second anniversary of
issuance or renewal of the license under certain conditions.
(e) Requires the renewal report required under Subsection
(d)(2) to be filed in accordance with department rules.
(f) Prohibits the department from issuing a license under
this chapter unless the beds provided under the license are
approved under the state's plan on long-term care facilities
for persons with mental retardation.
(g) Provides that a license or renewal fee imposed under
this chapter is an allowable cost for reimbursement under
the state Medicaid program. Requires an increase in the
amount of a fee to be reflected in reimbursement rates
prospectively.
Sec. 251.034. MINIMUM STANDARDS. Authorizes the Texas Board
of Human Services (board) to adopt, publish, and enforce
certain minimum standards. Provides that a facility certified
as being in compliance with each standard of participation in
the state Medicaid program that relates to the same subject
matter as a minimum standard established under this section is
not required to satisfy the minimum standard established under
this section.
Sec. 251.035. REASONABLE TIME TO COMPLY. Requires the board,
by rule, to give a facility that is in operation when a rule
or standard is adopted under this chapter a reasonable time to
comply with the rule or standard.
Sec. 251.036. FIRE SAFETY REQUIREMENTS. (a) Requires a
facility to comply with fire safety requirements under this
chapter.
(b) Requires the board, by rule, to adopt the fire safety
standards applicable to the facility. Sets forth
requirements for the standards.
(c) Prohibits the board from requiring more stringent fire
safety standards than those required by federal law and
regulation.
(d) Requires a facility licensed under applicable law on
September 1, 1995, to comply with the fire safety standards.
(e) Provides that the rules adopted under this section do
not prevent a facility licensed under this chapter from
voluntarily conforming to fire safety standards that are
compatible with, equal to, or more stringent than those
adopted by the board.
(f) Authorizes a municipality to enact additional and more
stringent fire safety standards applicable to new
construction begun on or after September 1, 1995.
Sec. 251.037. POSTING. Requires each facility to post for
display in a public area of the facility that is readily
available to resident, employees, and visitors the license
under this chapter, a sign specifying complaint procedures, a
notice regarding the availability of reports, and a summary of
the most recent inspection report relating to the facility.
Sec. 251.038. INSPECTIONS. (a) Authorizes the department or
a designee to make any inspection, survey, or investigation
(survey) it considers necessary, and to enter the facility at
reasonable times to make a survey in accordance with board
rules.
(b) Entitles the department to access to books, records, and
other facility documents as necessary to enforce this
chapter.
(c) Provides that a license holder or an applicant for a
license is considered to have consented to entry and survey
of the facility by a department representative.
(d) Requires the department to establish procedures to
preserve all relevant evidence of conditions the department
finds during a survey that the department believes threaten
the health and safety of a resident.
(e) Sets forth guidelines and requirements for photographing
a resident.
(f) Provides that a facility, an officer or employee of a
facility, and a resident's attending physician are not
civilly liable for surrendering confidential or private
material under this section.
(g) Requires the department to establish in clear and
concise language a form to summarize each inspection report
and complaint investigation report.
(h) Requires the department to establish proper procedures
to ensure that copies of all forms and reports under this
section are made available as the department considers
proper.
Sec. 251.039. UNANNOUNCED INSPECTIONS. (a) Requires the
department to conduct at least two unannounced inspections of
each facility during each licensing period.
(b) Requires the department to randomly select a sufficient
percentage of facilities for unannounced inspections to be
conducted between 5 p.m. and 8 a.m. Requires those
inspections to be cursory in order to avoid disruption of
the residents.
(c) Authorizes the department to require additional
inspections.
(d) Authorizes the department to invite at least one person
as a citizen advocate to participate in inspections. Sets
forth requirements for the invited advocate.
Sec. 251.040. DISCLOSURE OF UNANNOUNCED INSPECTIONS; CRIMINAL
PENALTY. Provides that, except as provided by this chapter,
a person commits a Class B misdemeanor who intentionally,
knowingly, or recklessly discloses to an unauthorized person
the date, time, or any other fact about an unannounced
inspection of a facility before the inspection occurs.
Exempts certain entities from the definition of "unauthorized
person." Prohibits a person convicted under this section from
eligibility for state employment.
Sec. 251.041. LICENSING SURVEYS. Requires the department to
provide a team to conduct surveys to validate findings of
licensing surveys in order to assure that survey teams
throughout the state survey in a fair and consistent manner.
Requires a facility subjected to a validation survey to
correct deficiencies cited by the validation team, but is not
subject to punitive action for those deficiencies.
SUBCHAPTER C. GENERAL ENFORCEMENT
Sec. 251.061. EMERGENCY SUSPENSION OR CLOSING ORDER. (a)
Requires the department to suspend a facility's license or
order an immediate closing if the department finds that the
facility is operating in violation of the standards prescribed
by this chapter and the violation creates an immediate threat
to the health and safety of a resident.
(b) Requires the board, by rule, to provide for the
placement of residents during the facility's suspension or
closing to ensure their health and safety.
(c) Makes an order under Subsection (a) immediately
effective on the date on which the license holder receives
written notice or a later date specified in the order.
(d) Makes an order under Subsection (a) valid for 10 days
after the effective date of the order.
Sec. 251.062. INJUNCTION. (a) Authorizes the department to
petition a district court for a temporary restraining order to
restrain a person from continuing a violation of the standards
under this chapter if the department finds that a violation
creates an immediate threat to the health and safety of the
facility's residents.
(b) Authorizes a district court, on petition of the
department, to prohibit a person from continuing a
violation; restrain or prevent the establishment, conduct,
management, or operation of a facility without a license
under this chapter; or grant the injunctive relief warranted
by the facts on a finding that a person is violating this
chapter.
(c) Requires the attorney general, on department request, to
institute and conduct a suit authorized by this section.
(d) Authorizes a suit for a temporary restraining order or
other injunctive relief to be brought in the county in which
the alleged violation occurs.
Sec. 251.063. LICENSE REQUIREMENTS; CRIMINAL PENALTY.
Provides that a person commits an offense punishable by a
certain fine if the person violates Section 251.031. Provides
that each day of a continuing violation after conviction is a
separate offense.
Sec. 251.064. CIVIL PENALTY. Makes a person who violates
this chapter liable for a civil penalty of not less than $100
or more than $10,000 for each violation if the department
determines the violation threatens the health and safety of a
resident. Provides that each day of a continuing violation
constitutes a separate ground for recovery.
Sec. 251.065. ADMINISTRATIVE PENALTY. (a) Authorizes the
department to assess an administrative penalty against a
facility that violates this chapter as specified by this
section.
(b) Requires the department to establish gradations of
penalties and amounts of penalties in accordance with the
relative seriousness of the violations.
(c) Requires the department, in determining the amount of a
penalty, to consider any matter justice may require.
(d) Prohibits the penalty from exceeding $5,000 a day for
each violation. Provides that each day of a continuing
violation constitutes a separate violation.
(e) Requires the department to establish rules governing the
assessment of administrative penalties.
SUBCHAPTER D. TRUSTEES FOR FACILITIES
Sec. 251.091. FINDINGS AND PURPOSE. Sets forth the findings
of the legislature regarding the closing of an intermediate
care facility, and the purpose of this chapter.
Sec. 251.092. APPOINTMENT BY AGREEMENT. (a) Authorizes a
person holding a controlling interest in a facility to request
the department to assume the operation of the facility through
the appointment of a trustee under this subchapter.
(b) Authorizes the department to enter into an agreement
providing for the appointment of a trustee to take charge of
the facility under conditions considered appropriate to both
parties if the department considers the appointment
desirable.
(c) Sets forth requirements for an agreement.
(d) Provides that the agreement terminates at the time
specified by the parties or when either party notifies the
other in writing that the party wishes to terminate the
agreement.
Sec. 251.093. INVOLUNTARY APPOINTMENT. (a) Authorizes the
department to request the attorney general to bring an action
in the name and on behalf of the state for the appointment of
a trustee to operate a facility under certain conditions.
(b) Authorizes a trustee appointed under Subsection (a)(5)
only to ensure an orderly and safe relocation of the
facility's residents as quickly as possible.
(c) Requires a court, after a hearing, to appoint a trustee
to take charge of a facility if the court finds that
involuntary appointment of a trustee is necessary.
(d) Requires the court to appoint as trustee a person whose
background includes mental retardation service
administration.
(e) Provides that venue for an action brought under this
section is in Travis County.
Sec. 251.094. FEE; RELEASE OF FUNDS. Entitles a trustee
appointed under this subchapter to a reasonable fee as
determined by the court. Authorizes a trustee to petition the
court to order the release to the trustee of any payment owed
the trustee for care and services provided to the residents if
the payment has been withheld.
Sec. 251.095. EMERGENCY ASSISTANCE FUNDS; ADDITIONAL
LICENSING FEE. (a) Authorizes the department to collect an
annual fee to be used to make emergency assistance funds
available to a facility licensed under this chapter.
(b) Requires the fee collected under this section to be in
a certain amount and deposited to the credit of the nursing
and convalescent home trust fund (trust fund) under Section
242.096.
(c) Authorizes the department to disburse funds from the
trust fund to a facility licensed under this chapter for the
purposes and in the manner a disbursement may be made under
Section 242.096.
(d) Authorizes a court to order the department to disburse
emergency assistance funds to a facility licensed under this
chapter in accordance with Section 242.096(c).
Sec. 251.096. REIMBURSEMENT. (a) Requires a facility that
receives emergency assistance funds under this chapter to
reimburse the department for amounts received.
(b) Sets forth requirements for the accrual of interest.
(c) Makes the owner of the facility when the trustee is
appointed responsible for the reimbursement.
(d) Provides that the amount that remains unreimbursed on
the first anniversary of the date on which the funds are
received is delinquent. Authorizes the department to
determine that the facility is ineligible for a Medicaid
provider contract.
(e) Requires the department to deposit the reimbursement and
interest received under this section to the credit of the
trust fund.
(f) Requires the attorney general to institute an action to
collect the funds due under this section at the request of
the department. Provides that venue for an action under
this section is in Travis County.
Sec. 251.097. NOTIFICATION OF CLOSING. (a) Requires a
facility that is closing to notify the residents of the
closing and make reasonable efforts to notify in writing each
resident's nearest relative or the person responsible for the
resident's support within a reasonable time before the
closing.
(b) Requires the facility, if the closing is involuntary, to
make notification immediately on receiving notice of the
closing.
(c) Requires the facility, if the closing is voluntary, to
make the notification not later than one week after the date
on which the decision to close is made.
SUBCHAPTER E. REPORTS OF ABUSE AND NEGLECT
Sec. 251.121. DEFINITION. Defines "designated agency."
Sec. 251.122. REPORTING OF ABUSE AND NEGLECT. (a) Requires
a person who has cause to believe that the physical or mental
health or welfare of a resident has been or may be adversely
affected by abuse or neglect caused by another person to
report the abuse or neglect to the department, a designated
agency, or both, as specified by department rules.
(b) Requires each facility to require each employee of the
facility to sign a statement that the employee realizes that
the employee may be criminally liable for failure to report
abuse or neglect.
(c) Requires a person to make an oral report immediately on
learning of abuse or neglect, and to make a written report
to the same agency by a certain date.
(d) Requires a local or state law enforcement agency that
receives a report of abuse or neglect to refer the report to
the department or the designated agency.
Sec. 251.123. CONTENTS OF REPORT. Sets forth guidelines and
requirements for a report of abuse or neglect.
Sec. 251.124. ANONYMOUS REPORTS OF ABUSE OR NEGLECT.
Requires an anonymous report of abuse or neglect to be
received and acted on in the same manner as an acknowledged
report.
Sec. 251.125. INVESTIGATION AND REPORT OF RECEIVING AGENCY.
Requires the department or designated agency to make a
thorough investigation promptly after receiving a report.
(b) Declares that the primary purpose of the investigation
is the protection of the resident.
(c) Requires the investigation, department, or designated
agency to make certain determinations.
(d) Authorizes the investigation to include a visit to the
resident's facility and an interview with the resident.
(e) Requires a probate or county court, if the department
attempts to carry out an on-site investigation and it is
shown that admission to the facility or any place where a
resident is located cannot be obtained, to order the person
responsible for the care of the resident or the person in
charge of the place where the resident is located to allow
admission for the investigation and any interview with the
resident.
(f) Requires the department, before completion of the
investigation, to file a petition for temporary care and
protection of the resident if the department determines that
immediate removal is necessary to protect the resident from
further abuse or neglect.
(g) Requires the department or designated agency to make a
complete written report of the investigation and submit the
report and recommendations to the district attorney and
appropriate law enforcement agency.
Sec. 251.126. CONFIDENTIALITY. Provides that a report,
record, or working paper used or developed in an investigation
made under this subchapter is confidential and may be
disclosed only for purposes consistent with the rules adopted
by the board or the designated agency.
Sec. 251.127. IMMUNITY. Makes immune from civil or criminal
liability a person who reports an act of abuse or neglect as
provided by this subchapter. Provides that immunity extends
to participation in any judicial proceeding that results from
the report, and that this section does not apply to a person
who reports in violation of Section 251.131.
Sec. 251.128. PRIVILEGED COMMUNICATIONS. Prohibits, in a
proceeding regarding the abuse or neglect of a resident or the
cause of any abuse or neglect, evidence from being excluded in
the ground of privileged communication except in the case of
a communication between an attorney and client.
Sec. 251.129. CENTRAL REGISTRY. (a) Requires the department
to maintain in the city of Austin a central registry of
reported cases of abuse or neglect. Requires this registry to
be included in the registry maintained under Section 242.130.
(b) Authorizes the board to adopt rules necessary to carry
out this section.
(c) Requires the rules to provide for cooperation with
hospitals and clinics in the exchange of reports of resident
abuse or neglect.
Sec. 251.130. FAILURE TO REPORT; CRIMINAL PENALTY. Provides
that a person commits a Class A misdemeanor who has cause to
believe that a resident's physical or mental health or welfare
has been or may be further adversely affected by abuse or
neglect and knowingly fails to report in accordance with
Section 251.122.
Sec. 251.131. BAD FAITH, MALICIOUS, OR RECKLESS REPORTING;
CRIMINAL PENALTY. Provides that a person commits a Class A
misdemeanor who reports in bad faith, maliciously, or
recklessly.
Sec. 251.132. SUIT FOR RETALIATION. (a) Provides that person
has a cause of action against a facility, or owner of employee
of a facility, that suspends or terminated the employment of
the person or otherwise disciplines or discriminates against
the person for reporting the abuse or neglect of a resident to
the person's supervisors, the department, or a law enforcement
agency.
(b) Authorizes the petitioner to recover certain fees,
costs, and damages.
(c) Entitles a person whose employment is suspended or
terminated to reinstatement in the person's former position.
(d) Requires the petitioner, by a certain date, to bring
suit or notify the Texas Employment Commission of the
petitioner's intent to sue under this section. Requires the
commission to notify the facility of the petitioner's intent
to bring suit.
(e) Places the burden of proof on the petitioner, with a
specific exception.
(f) Authorizes a suit under this section to be brought in a
certain district court.
(g) Requires each facility to require each facility employee
to sign a statement that the employee understands the
employee's rights under this section. Sets forth provisions
in the event that a facility does not require an employee to
read and sign the statement.
Sec. 251.133. REPORTS RELATING TO RESIDENT DEATHS. (a)
Requires a facility licensed under this chapter to submit a
report to the department concerning deaths of residents of the
facility. Requires the report to be submitted by a certain
date. Requires the facility to report a resident's death
occurring within 24 hours after the resident is transferred
from the facility to a hospital.
(b) Requires the facility to make the report on a form
prescribed by the department. Requires the report to
contain the name and social security number of the deceased.
(c) Requires the department to correlate reports under this
section with death certificate information to develop
certain data.
(d) Makes a record under this section confidential and not
subject to the provisions of Chapter 552, Government Code,
unless specified by board rule and except as specified by
Subsection (e).
(e) Requires the department to develop statistical
information on official causes of death to determine
patterns and trends of incidents of death among the persons
with mental retardation and related conditions and in
specific facilities. Makes information developed under this
subsection public.
(f) Requires a licensed facility to make available
historical statistics on all required information on request
of an applicant or applicant's representative.
SUBCHAPTER F. MEDICAL CARE
Sec. 251.151. APPLICATION OF OTHER LAW. (a) Provides that,
except as provided by Subchapter (c), Chapter 242F applies to
a facility.
(b) Defines "resident" and "institution."
(c) Provides that Section 242.160 does not apply to a
facility.
SUBCHAPTER G. RESPITE CARE
Sec. 251.181. DEFINITIONS. Defines "plan of care" and
"respite care."
Sec. 151.182. RESPITE CARE. (a) Authorizes a facility
licensed under this subchapter to provide respite care for an
individual who has a diagnosis of mental retardation or a
related condition without regard to whether the individual is
eligible to receive intermediate care services under federal
law.
(b) Authorizes the board to adopt rules for the regulation
of respite care provided by a facility licensed under this
chapter.
Sec. 251.183. PLAN OF CARE. (a) Requires the facility and
person arranging the care to agree on the plan of care, and
the plan to be filed at the facility before the facility
admits the person for care.
(b) Requires the plan of care to be signed by certain
persons.
(c) Authorizes the facility to keep an agreed plan of care
for a person not longer than six months from the date on
which it is received, and to admit the person as frequently
as is needed and as accommodations are available during that
period.
Sec. 251.184. NOTIFICATION. Requires a facility that offers
respite care to notify the department in writing that the
facility offers respite care.
Sec. 251.185. INSPECTIONS. Requires the department to
inspect a facility's records of respite care services,
physical accommodations available for respite care, and the
plan of care records to ensure that the respite care services
comply with the licensing standards of this chapter and with
any rules the board may adopt to regulate respite care
services.
Sec. 251.186. SUSPENSION. (a) Authorizes the department to
require a facility to cease providing respite care if the
department determines that the respite care does not meet the
standards required by this chapter and that the facility
cannot comply with those standards in the respite care it
provides.
(b) Authorizes the department to suspend the license of a
facility that continues to provide respite care after
receiving a written order from the department to cease.
SUBCHAPTER H. ARBITRATION OF CERTAIN DISPUTES
Sec. 251.251. SCOPE OF SUBCHAPTER. Provides that this
subchapter applies to any dispute between an institution
licensed under this chapter and the department relating to the
renewal, suspension or revocation of certain licenses, or the
assessment of certain penalties.
Sec. 251.252. ELECTION OF ARBITRATION. (a) Authorizes an
affected institution to elect binding arbitration of any
dispute to which this subchapter applies. Declares that
arbitration under this subchapter is an alternative to a
contested case hearing or to a judicial proceeding relating to
the assessment of a civil penalty.
(b) Authorizes an affected institution to elect arbitration
under this subchapter by filing the election with the
department not later than the 10th day after a notice of
hearing relating to any dispute described by Section 251.251
is received by the facility.
(c) Authorizes the department to elect arbitration under
this subchapter by notifying the facility of the election
not later than the date that the facility may elect
arbitration under Subsection (b).
(d) Declares that an election to engage in arbitration under
this subchapter is irrevocable and binding on the facility
and the department.
Sec. 242.253. ARBITRATION PROCEDURES. (a) Requires the
arbitration to be conducted by an arbitrator.
(b) Requires the arbitration and appointment of the
arbitrator to be conducted in accordance with rules adopted
by the chief administrative law judge (chief judge) of the
State Office of Administrative Hearings (office). Requires
the chief judge, before adopting rules under this
subsection, to consult with the department and consider
appropriate rules developed by any nationally recognized
association that performs arbitration services.
(c) Requires the cost of the arbitration to be shared
equally by the department and the facility. Prohibits the
total fees and expenses paid for an arbitrator from
exceeding $500 per day.
(d) Authorizes the office to designate a nationally
recognized association that performs arbitration services to
conduct arbitrations under this subchapter, and to contract
with that association for the arbitration.
Sec. 251.254. ARBITRATOR; QUALIFICATIONS. Requires each
arbitrator to 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 251.253(b).
Sec. 251.255. ARBITRATOR; SELECTION. Requires the arbitrator
to be appointed in accordance with rules adopted under Section
251.253(b).
Sec. 251.256. DUTIES OF ARBITRATOR. Requires the arbitrator
to protect the interests of the department and the facility,
ensure that all relevant evidence has been disclosed, and
render an order consistent with this chapter and rules.
Sec. 251.257. SCHEDULING OF ARBITRATION. (a) Requires the
arbitrator conducting the arbitration to schedule arbitration
to be held not later than the 90th day after the date the
arbitrator is selected, and to notify the department and the
facility of the date.
(b) Authorizes the arbitrator to grant a continuance of the
arbitration at the request of the department or the
facility. Prohibits the arbitrator from unreasonably
denying a request for a continuance.
Sec. 251.258. EXCHANGE AND FILING OF INFORMATION. Requires
the department and the facility, not later than the seventh
day before the first day of arbitration, to exchange and file
with the arbitrator all documentary evidence not previously
exchanged and filed that is relevant to the dispute, and
information relating to a proposed resolution of the dispute.
Sec. 251.259. ATTENDANCE REQUIRED. (a) Authorizes the
arbitrator to 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) Prohibits an arbitrator from making an order solely on
the default of a party. Requires the arbitrator to require
the party who is present to submit evidence required by the
arbitrator before making an award.
Sec. 251.260. TESTIMONY; RECORD. (a) Authorizes the
arbitrator to require witnesses to testify under oath.
Requires the arbitrator to require testimony under oath if
requested by the department or the facility.
(b) Requires the department to make an electronic recording
of the proceeding.
(c) Authorizes the department or the facility to make a
stenographic record. Requires the party that makes the
record to pay the expense of having the record made.
Sec. 251.261. EVIDENCE. (a) Authorizes the department or the
facility to offer evidence as desired, and requires the
department or the facility to produce additional evidence as
the arbitrator considers necessary to understand and resolve
the dispute.
(b) Declares that the arbitrator is the judge of the
relevance and materiality of the evidence offered, and that
strict conformity to the rules applicable to judicial
proceedings is not required.
Sec. 251.262. CLOSING STATEMENTS; BRIEFS. Authorizes the
department and the facility to present closing statements as
they desire, but prohibits the record from remaining open for
written briefs unless requested by the arbitrator.
Sec. 251.263. EX PARTE CONTACTS PROHIBITED. (a) Authorizes
the department and the facility, except as provided by
Subsection (b), from communicating with an arbitrator other
than at an oral hearing, unless the parties and arbitrator
agree otherwise.
(b) Requires any oral or written communication, other than
that under Subsection (a), from the parties to the
arbitrator to be directed to the association that is
conducting the arbitration or to the office for transmittal
to the arbitrator.
Sec. 251.264. ORDER. (a) Authorizes the arbitrator to enter
any order that may be entered by the department, the Texas
Board of Health, commissioner of health, or court under this
chapter in relation to a dispute described by Section 242.251.
(b) Requires the arbitrator to enter the order not later
than the 60th day after the last day of the arbitration.
(c) Requires the arbitrator to base the order on the facts
established at arbitration and on the law as properly
applied to those facts.
(d) Sets forth requirements for the order.
(e) Requires the arbitrator to file a copy of the order with
the department and to notify the department and the facility
in writing of the decision.
Sec. 251.265. EFFECT OF ORDER. Declares that an order of an
arbitrator under this subchapter is final and binding on all
parties. Provides that there is no right of appeal, except as
provided by Section 251.267.
Sec. 251.266. CLERICAL ERROR. Provides that an arbitrator
retains jurisdiction of the award for 20 days after the date
of the award for the purpose of correcting a clerical error.
Sec. 251.267. COURT VACATING ORDER. (a) Requires a court, on
application of the facility, to vacate an arbitrator's order
with respect to an arbitration conducted at the election of
the department upon certain findings.
(b) Requires the dispute to be remanded to the department
for another arbitration hearing if the order is vacated.
(c) Requires a suit to vacate an arbitrator's order to be
filed by a certain date.
(d) Declares that venue for a suit to vacate an arbitrator's
order is in the county in which the arbitration was
conducted.
Sec. 251.268. NO ARBITRATION OF EMERGENCY ORDER OR CLOSING
ORDER. Provides that this subchapter does not apply to an
order issued under Section 251.062.
SECTION 2. Amends Section 242.002(6), Health and Safety Code, to
redefine "institution."
SECTION 3. Amends Section 242.003, Health and Safety Code, to
provide that, except as otherwise provided, this chapter does not
apply to, among others, a facility licensed under Chapter 251 or
exempt from licensure under Section 251.003. Deletes existing
Subsection (b) regarding the licensing of an institution under
Section 242.002(6)(C).
SECTION 4. Effective date: September 1, 1995.
Effective date of SECTION 2: January 1, 1996.
SECTION 5. (a) Provides that, notwithstanding Sections 251.031 and
251.063, Health and Safety Code, a facility is not required to be
licensed under Chapter 251, Health and Safety Code, before January
1, 1996, and a facility that is required to be licensed under this
chapter and that is, in the effective date of this Act, licensed
under Chapter 242, Health and Safety Code, to continue to operate
under the license under Chapter 242 until the later of December 31,
1995, or the date on which the license is subject to renewal.
(b) Prohibits a license issued under Chapter 242, Health and
Safety Code, to an institution that is required to be licensed
as a facility under Chapter 251, Health and Safety Code, from
being renewed after December 1, 1995.
SECTION 6. Provides that Chapter 251H, Health and Safety Code,
applies only to a dispute described by Section 251.251, Health and
Safety Code, with respect to which formal proceedings are commenced
on or after January 1, 1996.
SECTION 7. Emergency clause.