BILL ANALYSIS


                                                    C.S.S.B. 1596
                                                       By: Leedom
                                        Health and Human Services
                                                          4-28-95
                                   Committee Report (Substituted)
BACKGROUND

Currently, there are two forums for convalescent or nursing homes
to appeal punitive actions taken by the Department of Human
Services: informal reconsideration and formal administrative
appeals.

In informal reconsiderations, regional directors from the
department make the final decisions regarding determinations,
penalties, and sanctions.  These are the same individuals who make
decisions leading to the informal reconsideration request.  Formal
administrative appeals are held at the department in front of
administrative law judges who are employed by the department. 
Neither of these venues is conducive to impartial or objective
proceedings, and lead to a major area of concern that there exists
no due process for the purpose of administratively resolving
deficiency or penalty issues.

PURPOSE

As proposed, C.S.S.B. 1596 authorizes the election of binding
arbitration of certain disputes between the Texas Department of
Health and health-care institutions licensed under Chapter 242,
Health and Safety Code.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 242, Health and Safety Code, by adding
Subchapter H, as follows:

          SUBCHAPTER H.  ARBITRATION OF CERTAIN DISPUTES

     Sec. 242.251.  SCOPE OF SUBCHAPTER.  Provides that this
     subchapter applies to any dispute, between an institution
     licensed under this chapter and the Texas Department of Human
     Services (department), relating to renewal of a license under
     Section 242.033, suspension or revocation of a license or
     closing of a facility under Section 242.061 or 242.062,
     assessment of a civil penalty under Section 242.066, or
     assessment of an administrative penalty under Section 242.066.
     
     Sec. 242.252.  ELECTION OF ARBITRATION.  (a) Authorizes an
     affected institution to elect binding arbitration, as an
     alternative to a contested case hearing or a judicial
     proceeding relating to the assessment of a civil penalty, of
     any dispute to which this subchapter applies.
     
     (b) Authorizes an affected institution to elect arbitration
       by filing the election with the department not later than
       the 10th day after a notice of hearing relating to any
       dispute under Subsection 242.251 is received by the
       institution.
       
       (c) Makes an election to engage in arbitration irrevocable
       and binding.
       
       Sec. 242.253.  ARBITRATION PROCEDURES.  (a) Requires the
     arbitration to be conducted by the American Arbitration
     Association or another nationally recognized association that
     performs arbitration services.
     
     (b) Requires the arbitration to be conducted in accordance
       with the American Arbitration Association's commercial
       arbitration rules in effect November 1, 1993.
       
       (c) Requires the cost of the arbitration to be shared
       equally by the department and the institution electing
       arbitration.
       
       Sec. 242.254.  ARBITRATOR; QUALIFICATIONS.  Requires the
     arbitrator to be on an approved list of the American
     Arbitration Association or another nationally recognized
     association that performs arbitration services.
     
     Sec. 242.255.  ARBITRATOR; SELECTION.  Requires the
     arbitration to be conducted by one arbitrator appointed from
     a panel of arbitrators provided by the American Arbitration
     Association or another nationally recognized association that
     performs arbitration services.  Requires the appointment to be
     made in accordance with the American Arbitration Association's
     commercial arbitration rules in effect November 1, 1993.
     
     Sec. 242.256.  DUTIES OF ARBITRATOR.  Requires the arbitrator
     to protect the interests of the department and institution;
     ensure that all relevant evidence has been disclosed to the
     arbitrator, department, and institution; and render an order
     consistent with this chapter and rules adopted under this
     chapter.
     
     Sec. 242.257.  SCHEDULING OF ARBITRATION.  (a) Requires the
     association conducting the arbitration to schedule arbitration
     within a certain time period and to notify the department and
     institution of the scheduled date.
     
     (b) Authorizes the arbitrator to grant a continuance of the
       arbitration, and prohibits the arbitrator from unreasonably
       denying a department or institution request for continuance.
       
       Sec. 242.258.  EXCHANGE AND FILING OF INFORMATION.  Requires
     the department and institution to exchange and file with the
     arbitrator certain information.
     
     Sec. 242.259.  ATTENDANCE REQUIRED.  (a) Authorizes the
     arbitrator to proceed in the absence of any 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, and requires the arbitrator to
       require the party who is present to submit evidence, as
       required by the arbitrator, before making an award.
     Sec. 242.260.  TESTIMONY; RECORD.  (a) Authorizes the
     arbitrator to require witnesses to testify under oath, and
     requires the arbitrator to require such testimony if requested
     by the department or institution.
     
     (b) Requires the department to make an electronic recording
       of the proceeding.
       
       (c) Authorizes the department or institution to make a
       stenographic record of the proceeding.
       
       Sec. 242.261.  EVIDENCE.  (a) Authorizes the department or
     institution to offer evidence as they desire, and requires
     them to produce additional evidence necessary to understand
     and resolve the dispute.
     
     (b) Makes the arbitrator the judge of the relevance and
       materiability of the evidence offered.  Provides that strict
       conformity to rules applicable to judicial proceedings is
       not required.
       
       Sec. 242.262.  CLOSING STATEMENTS; BRIEFS.  Authorizes the
     department and institution to present closing statements as
     they desire, but prohibits the records from remaining open for
     written briefs unless requested by the arbitrator.
     
     Sec. 242.263.  EX PARTE CONTACTS PROHIBITED.  (a) Prohibits
     the department and institution, except as provided by
     Subsection (b), from communicating with the arbitrator other
     than at an oral hearing, unless the parties and the arbitrator
     agree otherwise.
     
     (b) Requires any oral or written communication, other than
       under Subsection (A), from the parties to the arbitrator to
       be directed to the association conducting the arbitration
       for transmittal to the arbitrator.
     Sec. 242.264.  ORDER.  (a) Authorizes the arbitrator to enter
     any order that may be entered by the department, board,
     commissioner, or court under this chapter in relation to a
     dispute under 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 institution
       in writing of the decision.
       
       Sec. 242.265.  EFFECT OF ORDER.  Makes an order under this
     subchapter final and binding, and provides that, except as
     provided by Section 242.267, there is no right to appeal.
     
     Sec. 242.266.  CLERICAL ERROR.  Provides that the arbitrator,
     for the purpose of correcting a clerical error, retains
     jurisdiction of the award for 20 days after the date of the
     award.
     
     Sec. 242.267.  COURT VACATING ORDER.  (a) Requires a court, on
     application of the department or institution, to vacate an
     arbitrator's order under certain conditions.
     
     (b) Requires the dispute, if the order is vacated, to be
       remanded to the department for another arbitration
       proceeding.
       
       (c) Requires a suit to vacate an arbitrator's order to be
       filed by a certain date.
       
       (d) Places venue for a suit to vacate an arbitrator's order
       in the county where the arbitration was conducted.
       
       Sec. 242.268.  EMERGENCY ORDER OR CLOSING ORDER NOT STAYED. 
     Provides that an order issued under Section 242.062 is not
     stayed, pending an arbitration under this subchapter.
     
     SECTION 2.     Effective date: September 1, 1995.
           Makes application of this Act prospective beginning
January 1, 1996.

SECTION 3. Emergency clause.