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