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.