By Hilderbran                                         H.B. No. 2644
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to licensing and Medicaid certification requirements for
    1-3  certain nursing facilities and related penalties and dispute
    1-4  resolution.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 32.021, Human Resources Code, is amended
    1-7  by amending Subsection (d) and adding Subsections (h), (i), (j),
    1-8  and (k) to read as follows:
    1-9        (d)  The department may include in its contracts for the
   1-10  delivery of medical assistance by nursing facilities provisions for
   1-11  monetary penalties to be assessed for contract violations as
   1-12  required by 42 U.S.C. Section 1396r, including without limitation
   1-13  the Omnibus Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing
   1-14  Home Reform Amendments of 1987, provided that the department:
   1-15              (1)  establish a penalties and sanctions advisory
   1-16  committee of consumer advocates and long-term care providers to
   1-17  help develop and monitor an appropriate system for assessing
   1-18  penalties; and
   1-19              (2)  develop rules in accordance with Subsection (i)<,
   1-20  including an administrative appeals process> to adjudicate claims
   1-21  in contested cases<, in accordance with the Administrative
   1-22  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
   1-23  Civil Statutes)>.
   1-24        (h)  Except to the extent necessary to implement rights
    2-1  granted to an elderly individual under Chapter 102, the rules
    2-2  adopted by the department for certification of facilities as being
    2-3  in compliance with the requirements for participation in the state
    2-4  Medicaid program may not be different from the standards imposed by
    2-5  federal law.  This subsection does not prevent the department from
    2-6  using any civil, administrative, or criminal remedy authorized by
    2-7  state or federal law with respect to a facility that is in
    2-8  violation of a certification or licensing requirement.
    2-9        (i)  The rules adopted under Subsection (d)(2) must provide
   2-10  for:
   2-11              (1)  an informal dispute resolution process that
   2-12  provides for adjudication by an appropriate disinterested person in
   2-13  a regional office of the department and an informal appeal to the
   2-14  department's central office;
   2-15              (2)  an administrative appeals process under Chapter
   2-16  2001, Government Code; and
   2-17              (3)  the arbitration process described by Subsection
   2-18  (k).
   2-19        (j)  A finding by the department that an institution has
   2-20  violated a standard for participation in the state Medicaid
   2-21  program, or the assessment or payment of a monetary penalty under
   2-22  this section, is not admissible as evidence in a civil action to
   2-23  prove that the institution has committed a violation.  This
   2-24  subsection does not apply in an enforcement action or related
   2-25  proceeding in which the state or an agency or political subdivision
   2-26  of the state is a party.
   2-27        (k)  An assessment of monetary penalties under this section
    3-1  is subject to arbitration under Subchapter H, Chapter 242, Health
    3-2  and Safety Code.
    3-3        SECTION 2.  Section 242.036, Health and Safety Code, is
    3-4  amended by adding Subsections (e) and (f) to read as follows:
    3-5        (e)  The attorney general shall issue an annual report to
    3-6  consumers on the performance of nursing facilities in Texas.
    3-7        (f)  The attorney general shall issue an annual report to
    3-8  consumers on the performance of providers of nursing facility
    3-9  services in Texas.
   3-10        SECTION 3.  Section 242.037, Health and Safety Code, is
   3-11  amended to read as follows:
   3-12        Sec. 242.037.  MINIMUM STANDARDS.  (a)  The board may adopt,
   3-13  publish, and enforce minimum standards relating to:
   3-14              (1)  the construction of an institution, including
   3-15  plumbing, heating, lighting, ventilation, and other housing
   3-16  conditions, to ensure the residents' health, safety, comfort, and
   3-17  protection from fire hazard;
   3-18              (2)  the regulation of the number and qualification of
   3-19  all personnel, including management and nursing personnel,
   3-20  responsible for any part of the care given to the residents;
   3-21              (3)  requirements for in-service education of all
   3-22  employees who have any contact with the residents;
   3-23              (4)  training on the care of persons with Alzheimer's
   3-24  disease and related disorders for employees who work with those
   3-25  persons;
   3-26              (5)  sanitary and related conditions in an institution
   3-27  and its surroundings, including water supply, sewage disposal, food
    4-1  handling, and general hygiene in order to ensure the residents'
    4-2  health, safety, and comfort;
    4-3              (6)  the dietary needs of each resident according to
    4-4  good nutritional practice or the recommendations of the physician
    4-5  attending the resident;
    4-6              (7)  equipment essential to the residents' health and
    4-7  welfare; and
    4-8              (8)  the use and administration of medication in
    4-9  conformity with applicable law and rules.
   4-10        (b)  Notwithstanding Section 222.0255(b), an institution that
   4-11  is certified as being in compliance with each standard of
   4-12  participation in the state Medicaid program that relates to the
   4-13  same subject matter as a minimum standard established under
   4-14  Subsection (a) is not required to satisfy the minimum standard
   4-15  established under that subsection.
   4-16        SECTION 4.  Section 242.069, Health and Safety Code, is
   4-17  amended by adding Subsection (g) to read as follows:
   4-18        (g)  A penalty collected under this section shall be
   4-19  deposited to the credit of the nursing and convalescent home trust
   4-20  fund established under Section 242.096.
   4-21        SECTION 5.  Subchapter C, Chapter 242, Health and Safety
   4-22  Code, is amended by adding Section 242.070 to read as follows:
   4-23        Sec. 242.070.  APPLICATION OF OTHER LAW.  The department may
   4-24  not assess a penalty under both this subchapter and Section 32.021,
   4-25  Human Resources Code, for a violation arising out of the same act
   4-26  or failure to act.
   4-27        SECTION 6.  Chapter 242, Health and Safety Code, is amended
    5-1  by adding Subchapter H to read as follows:
    5-2            SUBCHAPTER H.  ARBITRATION OF CERTAIN DISPUTES
    5-3        Sec. 242.251.  SCOPE OF SUBCHAPTER.  This subchapter applies
    5-4  to any dispute between an institution licensed under this chapter
    5-5  and the department relating to:
    5-6              (1)  renewal of a license under Section 242.033;
    5-7              (2)  suspension or revocation of a license under
    5-8  Section 242.061;
    5-9              (3)  assessment of a civil penalty under Section
   5-10  242.065;
   5-11              (4)  assessment of a monetary penalty under Section
   5-12  242.066; or
   5-13              (5)  assessment of a penalty as described by Section
   5-14  32.021(k), Human Resources Code.
   5-15        Sec. 242.252.  ELECTION OF ARBITRATION.  (a)  An affected
   5-16  institution may elect binding arbitration of any dispute to which
   5-17  this subchapter applies. Arbitration under this subchapter is an
   5-18  alternative to a contested case hearing or to a judicial proceeding
   5-19  relating to the assessment of a civil penalty.
   5-20        (b)  An affected institution may elect arbitration under this
   5-21  subchapter by filing the election with the department not later
   5-22  than the 10th day after a notice of hearing relating to any dispute
   5-23  described by Section 242.251 is received by the institution.
   5-24        (c)  The department may elect arbitration under this
   5-25  subchapter by notifying the institution of the election not later
   5-26  than the date that the institution may elect arbitration under
   5-27  Subsection (b).
    6-1        (d)  An election to engage in arbitration under this
    6-2  subchapter is irrevocable and binding on the institution and the
    6-3  department.
    6-4        Sec. 242.253.  ARBITRATION PROCEDURES.  (a)  The arbitration
    6-5  shall be conducted by an arbitrator.
    6-6        (b)  The arbitration and the appointment of the arbitrator
    6-7  shall be conducted in accordance with rules adopted by the chief
    6-8  administrative law judge of the State Office of Administrative
    6-9  Hearings.  Before adopting rules under this subsection, the chief
   6-10  administrative law judge shall consult with the department and
   6-11  shall consider appropriate rules developed by any nationally
   6-12  recognized association that performs arbitration services.
   6-13        (c)  The cost of the arbitration shall be shared equally by
   6-14  the department and the institution.  The total fees and expenses
   6-15  paid for an arbitrator for a day may not exceed $500.
   6-16        (d)  The State Office of Administrative Hearings may
   6-17  designate a nationally recognized association that performs
   6-18  arbitration services to conduct arbitrations under this subchapter
   6-19  and may, after consultation with the department, contract with that
   6-20  association for the arbitrations.
   6-21        Sec. 242.254.  ARBITRATOR; QUALIFICATIONS.  Each arbitrator
   6-22  must be on an approved list of a nationally recognized association
   6-23  that performs arbitration services or be otherwise qualified as
   6-24  provided in the rules adopted under Section 242.253(b).
   6-25        Sec. 242.255.  ARBITRATOR; SELECTION.  The arbitrator shall
   6-26  be appointed in accordance with the rules adopted under Section
   6-27  242.253(b).
    7-1        Sec. 242.256.  DUTIES OF ARBITRATOR.  The arbitrator shall:
    7-2              (1)  protect the interests of the department and the
    7-3  institution;
    7-4              (2)  ensure that all relevant evidence has been
    7-5  disclosed to the arbitrator, department, and institution; and
    7-6              (3)  render an order consistent with this chapter and
    7-7  the rules adopted under this chapter.
    7-8        Sec. 242.257.  SCHEDULING OF ARBITRATION.  (a)  The
    7-9  arbitrator conducting the arbitration shall schedule arbitration to
   7-10  be held not later than the 90th day after the date the arbitrator
   7-11  is selected and shall notify the department and the institution of
   7-12  the scheduled date.
   7-13        (b)  The arbitrator may grant a continuance of the
   7-14  arbitration at the request of the department or institution.  The
   7-15  arbitrator may not unreasonably deny a request for a continuance.
   7-16        Sec. 242.258.  EXCHANGE AND FILING OF INFORMATION.  Not later
   7-17  than the seventh day before the first day of arbitration, the
   7-18  department and the institution shall exchange and file with the
   7-19  arbitrator:
   7-20              (1)  all documentary evidence not previously exchanged
   7-21  and filed that is relevant to the dispute; and
   7-22              (2)  information relating to a proposed resolution of
   7-23  the dispute.
   7-24        Sec. 242.259.  ATTENDANCE REQUIRED.  (a)  The arbitrator may
   7-25  proceed in the absence of any party or representative of a party
   7-26  who, after notice of the proceeding, fails to be present or to
   7-27  obtain a postponement.
    8-1        (b)  An arbitrator may not make an order solely on the
    8-2  default of a party and shall require the party who is present to
    8-3  submit evidence, as required by the arbitrator, before making an
    8-4  award.
    8-5        Sec. 242.260.  TESTIMONY; RECORD.  (a)  The arbitrator may
    8-6  require witnesses to testify under oath and shall require testimony
    8-7  under oath if requested by the department or the institution.
    8-8        (b)  The department shall make an electronic recording of the
    8-9  proceeding.
   8-10        (c)  An official stenographic record of the proceeding is not
   8-11  required, but the department or the institution may make a
   8-12  stenographic record.  The party that makes the stenographic record
   8-13  shall pay the expense of having the record made.
   8-14        Sec. 242.261.  EVIDENCE.  (a)  The department or the
   8-15  institution may offer evidence as they desire and shall produce
   8-16  additional evidence as the arbitrator considers necessary to
   8-17  understand and resolve the dispute.
   8-18        (b)  The arbitrator is the judge of the relevance and
   8-19  materiality of the evidence offered.  Strict conformity to rules
   8-20  applicable to judicial proceedings is not required.
   8-21        Sec. 242.262.  CLOSING STATEMENTS; BRIEFS.  The department
   8-22  and the institution may present closing statements as they desire,
   8-23  but the record may not remain open for written briefs unless
   8-24  requested by the arbitrator.
   8-25        Sec. 242.263.  EX PARTE CONTACTS PROHIBITED.  (a)  Except as
   8-26  provided by Subsection (b), the department and the institution may
   8-27  not communicate with an arbitrator other than at an oral hearing
    9-1  unless the parties and the arbitrator agree otherwise.
    9-2        (b)  Any oral or written communication, other than a
    9-3  communication authorized under Subsection (a), from the parties to
    9-4  an arbitrator shall be directed to the association that is
    9-5  conducting the arbitration or, if there is no association
    9-6  conducting the arbitration, to the State Office of Administrative
    9-7  Hearings, for transmittal to the arbitrator.
    9-8        Sec. 242.264.  ORDER.  (a)  The arbitrator may enter any
    9-9  order that may be entered by the department, board, commissioner,
   9-10  or court under this chapter in relation to a dispute described by
   9-11  Section 242.251.
   9-12        (b)  The arbitrator shall enter the order not later than the
   9-13  60th day after the last day of the arbitration.
   9-14        (c)  The arbitrator shall base the order on the facts
   9-15  established at arbitration, including stipulations of the parties,
   9-16  and on the law as properly applied to those facts.
   9-17        (d)  The order must:
   9-18              (1)  be in writing;
   9-19              (2)  be signed and dated by the arbitrator; and
   9-20              (3)  include a statement of the arbitrator's decision
   9-21  on the contested issues and the department's and institution's
   9-22  stipulations on uncontested issues.
   9-23        (e)  The arbitrator shall file a copy of the order with the
   9-24  department and shall notify the department and the institution in
   9-25  writing of the decision.
   9-26        Sec. 242.265.  EFFECT OF ORDER.  An order of an arbitrator
   9-27  under this subchapter is final and binding on all parties.  Except
   10-1  as provided by Section 242.267, there is no right to appeal.
   10-2        Sec. 242.266.  CLERICAL ERROR.  For the purpose of correcting
   10-3  a clerical error, an arbitrator retains jurisdiction of the award
   10-4  for 20 days after the date of the award.
   10-5        Sec. 242.267.  COURT VACATING ORDER.  (a)  On application of
   10-6  the institution, a court shall vacate an arbitrator's order with
   10-7  respect to an arbitration conducted at the election of the
   10-8  department on a finding that:
   10-9              (1)  the order was procured by corruption, fraud, or
  10-10  misrepresentation;
  10-11              (2)  the decision of the arbitrator was arbitrary or
  10-12  capricious and against the weight of the evidence; or
  10-13              (3)  the order exceeded the jurisdiction of the
  10-14  arbitrator under Section 242.264(a).
  10-15        (b)  If the order is vacated, the dispute shall be remanded
  10-16  to the department for another arbitration proceeding.
  10-17        (c)  A suit to vacate an arbitrator's order must be filed not
  10-18  later than the 30th day after:
  10-19              (1)  the date of the award; or
  10-20              (2)  the date the institution knew or should have known
  10-21  of a basis for suit under this section, but in no event later than
  10-22  the first anniversary of the date of the order.
  10-23        (d)  Venue for a suit to vacate an arbitrator's order is in
  10-24  the county in which the arbitration was conducted.
  10-25        Sec. 242.268.  NO ARBITRATION OF EMERGENCY ORDER OR CLOSING
  10-26  ORDER.  This subchapter does not apply to an order issued under
  10-27  Section 242.062.
   11-1        SECTION 7.  (a)  This Act takes effect September 1, 1995.
   11-2        (b)  Subchapter H, Chapter 242, Health and Safety Code, as
   11-3  added by this Act, applies only to a dispute described by Section
   11-4  242.251, Health and Safety Code, as added by this Act, with respect
   11-5  to which formal proceedings are commenced on or after January 1,
   11-6  1996.
   11-7        SECTION 8.  The importance of this legislation and the
   11-8  crowded condition of the calendars in both houses create an
   11-9  emergency and an imperative public necessity that the
  11-10  constitutional rule requiring bills to be read on three several
  11-11  days in each house be suspended, and this rule is hereby suspended.