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.