74R11604 E
By Hilderbran H.B. No. 2644
Substitute the following for H.B. No. 2644:
By Hilderbran C.S.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 242.037, 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 a panel of three arbitrators.
5-26 (b) The arbitration and the appointment of the panel shall
5-27 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. If the institution elects
6-8 the arbitration, the cost of the arbitration shall be shared
6-9 equally by the department and the institution.
6-10 (d) The State Office of Administrative Hearings may
6-11 designate a nationally recognized association that performs
6-12 arbitration services to conduct arbitrations under this subchapter
6-13 and may, after consultation with the department, contract with that
6-14 association for the arbitrations.
6-15 Sec. 242.254. ARBITRATOR; QUALIFICATIONS. Each arbitrator
6-16 must be on an approved list of a nationally recognized association
6-17 that performs arbitration services or be otherwise qualified as
6-18 provided in the rules adopted under Section 242.253(b).
6-19 Sec. 242.255. ARBITRATORS; SELECTION. The panel of
6-20 arbitrators shall be appointed in accordance with the rules adopted
6-21 under Section 242.253(b).
6-22 Sec. 242.256. DUTIES OF PANEL. The arbitration panel shall:
6-23 (1) protect the interests of the department and the
6-24 institution;
6-25 (2) ensure that all relevant evidence has been
6-26 disclosed to the panel, department, and institution; and
6-27 (3) render an order consistent with this chapter and
7-1 the rules adopted under this chapter.
7-2 Sec. 242.257. SCHEDULING OF ARBITRATION. (a) The panel
7-3 conducting the arbitration shall schedule arbitration to be held
7-4 not later than the 90th day after the date the panel is selected
7-5 and shall notify the department and the institution of the
7-6 scheduled date.
7-7 (b) The arbitration panel may grant a continuance of the
7-8 arbitration at the request of the department or institution. The
7-9 panel may not unreasonably deny a request for a continuance.
7-10 Sec. 242.258. EXCHANGE AND FILING OF INFORMATION. Not later
7-11 than the seventh day before the first day of arbitration, the
7-12 department and the institution shall exchange and file with the
7-13 arbitration panel:
7-14 (1) all documentary evidence not previously exchanged
7-15 and filed that is relevant to the dispute; and
7-16 (2) information relating to a proposed resolution of
7-17 the dispute.
7-18 Sec. 242.259. ATTENDANCE REQUIRED. (a) The arbitration
7-19 panel may proceed in the absence of any party or representative of
7-20 a party who, after notice of the proceeding, fails to be present or
7-21 to obtain a postponement.
7-22 (b) An arbitration panel may not make an order solely on the
7-23 default of a party and shall require the party who is present to
7-24 submit evidence, as required by the panel, before making an award.
7-25 Sec. 242.260. TESTIMONY; RECORD. (a) The arbitration panel
7-26 may require witnesses to testify under oath and shall require
7-27 testimony under oath if requested by the department or the
8-1 institution.
8-2 (b) The department shall make an electronic recording of the
8-3 proceeding.
8-4 (c) An official stenographic record of the proceeding is not
8-5 required, but the department or the institution may make a
8-6 stenographic record. The party that makes the stenographic record
8-7 shall pay the expense of having the record made.
8-8 Sec. 242.261. EVIDENCE. (a) The department or the
8-9 institution may offer evidence as they desire and shall produce
8-10 additional evidence as the arbitration panel considers necessary to
8-11 understand and resolve the dispute.
8-12 (b) The arbitration panel is the judge of the relevance and
8-13 materiality of the evidence offered. Strict conformity to rules
8-14 applicable to judicial proceedings is not required.
8-15 Sec. 242.262. CLOSING STATEMENTS; BRIEFS. The department
8-16 and the institution may present closing statements as they desire,
8-17 but the record may not remain open for written briefs unless
8-18 requested by the arbitration panel.
8-19 Sec. 242.263. EX PARTE CONTACTS PROHIBITED. (a) Except as
8-20 provided by Subsection (b), the department and the institution may
8-21 not communicate with an arbitrator other than at an oral hearing
8-22 unless the parties and the arbitration panel agree otherwise.
8-23 (b) Any oral or written communication, other than a
8-24 communication authorized under Subsection (a), from the parties to
8-25 an arbitrator shall be directed to the association that is
8-26 conducting the arbitration or, if there is no association
8-27 conducting the arbitration, to the State Office of Administrative
9-1 Hearings, for transmittal to the arbitration panel.
9-2 Sec. 242.264. ORDER. (a) The arbitration panel may enter
9-3 any order that may be entered by the department, board,
9-4 commissioner, or court under this chapter in relation to a dispute
9-5 described by Section 242.251.
9-6 (b) The arbitration panel shall enter the order not later
9-7 than the 60th day after the last day of the arbitration.
9-8 (c) The arbitration panel shall base the order on the facts
9-9 established at arbitration, including stipulations of the parties,
9-10 and on the law as properly applied to those facts.
9-11 (d) The order must:
9-12 (1) be in writing;
9-13 (2) be signed and dated by each arbitrator; and
9-14 (3) include a statement of the arbitration panel's
9-15 decision on the contested issues and the department's and
9-16 institution's stipulations on uncontested issues.
9-17 (e) The arbitration panel shall file a copy of the order
9-18 with the department and shall notify the department and the
9-19 institution in writing of the decision.
9-20 Sec. 242.265. EFFECT OF ORDER. An order of an arbitration
9-21 panel under this subchapter is final and binding on all parties.
9-22 Except as provided by Section 242.267, there is no right to appeal.
9-23 Sec. 242.266. CLERICAL ERROR. For the purpose of correcting
9-24 a clerical error, an arbitration panel retains jurisdiction of the
9-25 award for 20 days after the date of the award.
9-26 Sec. 242.267. COURT VACATING ORDER. (a) On application of
9-27 the institution, a court shall vacate an arbitration panel's order
10-1 with respect to an arbitration conducted at the election of the
10-2 department on a finding that:
10-3 (1) the order was procured by corruption, fraud, or
10-4 misrepresentation;
10-5 (2) the decision of the panel was arbitrary or
10-6 capricious and against the weight of the evidence; or
10-7 (3) the order exceeded the jurisdiction of the panel
10-8 under Section 242.264(a).
10-9 (b) If the order is vacated, the dispute shall be remanded
10-10 to the department for another arbitration proceeding.
10-11 (c) A suit to vacate an arbitration panel's order must be
10-12 filed not later than the 30th day after:
10-13 (1) the date of the award; or
10-14 (2) the date the institution knew or should have known
10-15 of a basis for suit under this section, but in no event later than
10-16 the first anniversary of the date of the order.
10-17 (d) Venue for a suit to vacate an arbitration panel's order
10-18 is in the county in which the arbitration was conducted.
10-19 Sec. 242.268. NO ARBITRATION OF EMERGENCY ORDER OR CLOSING
10-20 ORDER. This subchapter does not apply to an order issued under
10-21 Section 242.062.
10-22 SECTION 6. (a) This Act takes effect September 1, 1995.
10-23 (b) Subchapter H, Chapter 242, Health and Safety Code, as
10-24 added by this Act, applies only to a dispute described by Section
10-25 242.251, Health and Safety Code, as added by this Act, with respect
10-26 to which formal proceedings are commenced on or after January 1,
10-27 1996.
11-1 SECTION 7. The importance of this legislation and the
11-2 crowded condition of the calendars in both houses create an
11-3 emergency and an imperative public necessity that the
11-4 constitutional rule requiring bills to be read on three several
11-5 days in each house be suspended, and this rule is hereby suspended.