1-1  By:  Hilderbran (Senate Sponsor - Patterson)          H.B. No. 2644
    1-2        (In the Senate - Received from the House May 12, 1995;
    1-3  May 16, 1995, read first time and referred to Committee on Health
    1-4  and Human Services; May 24, 1995, reported adversely, with
    1-5  favorable Committee Substitute by the following vote:  Yeas 5, Nays
    1-6  0; May 24, 1995, sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR H.B. No. 2644               By:  Patterson
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to licensing and Medicaid certification requirements for
   1-11  certain nursing facilities and related penalties and dispute
   1-12  resolution.
   1-13        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-14        SECTION 1.  Section 32.021, Human Resources Code, is amended
   1-15  by amending Subsection (d) and adding Subsections (h), (i), (j),
   1-16  and (k) to read as follows:
   1-17        (d)  The department may include in its contracts for the
   1-18  delivery of medical assistance by nursing facilities provisions for
   1-19  monetary penalties to be assessed for contract violations as
   1-20  required by 42 U.S.C. Section 1396r, including without limitation
   1-21  the Omnibus Budget Reconciliation Act (OBRA), P.L. 100-203, Nursing
   1-22  Home Reform Amendments of 1987, provided that the department:
   1-23              (1)  establish a penalties and sanctions advisory
   1-24  committee of consumer advocates and long-term care providers to
   1-25  help develop and monitor an appropriate system for assessing
   1-26  penalties; and
   1-27              (2)  develop rules in accordance with Subsection (i)<,
   1-28  including an administrative appeals process> to adjudicate claims
   1-29  in contested cases<, in accordance with the Administrative
   1-30  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
   1-31  Civil Statutes)>.
   1-32        (h)  Except to the extent necessary to implement rights
   1-33  granted to an elderly individual under Chapter 102, the rules
   1-34  adopted by the department for certification of nursing facilities
   1-35  as being in compliance with the requirements for participation in
   1-36  the state Medicaid program may not be different from the standards
   1-37  imposed by federal law.  This subsection does not prevent the
   1-38  department from using any civil, administrative, or criminal remedy
   1-39  authorized by state or federal law with respect to a facility that
   1-40  is in violation of a certification or licensing requirement.
   1-41        (i)  The rules adopted under Subsection (d)(2) must provide
   1-42  for:
   1-43              (1)  an informal dispute resolution process that
   1-44  provides for adjudication by an appropriate disinterested person in
   1-45  a regional office of the department and an informal appeal to the
   1-46  department's central office;
   1-47              (2)  an administrative appeals process under Chapter
   1-48  2001, Government Code; and
   1-49              (3)  the arbitration process described by Subsection
   1-50  (k).
   1-51        (j)  A finding by the department that an institution has
   1-52  violated a standard for participation in the state Medicaid
   1-53  program, or the assessment or payment of a monetary penalty under
   1-54  this section, is not admissible as evidence in a civil action to
   1-55  prove that the institution has committed a violation.  This
   1-56  subsection does not apply in an enforcement action or related
   1-57  proceeding in which the state or an agency or political subdivision
   1-58  of the state is a party.
   1-59        (k)  An assessment of monetary penalties under this section
   1-60  is subject to arbitration under Subchapter H, Chapter 242, Health
   1-61  and Safety Code.
   1-62        SECTION 2.  Section 242.037, Health and Safety Code, is
   1-63  amended to read as follows:
   1-64        Sec. 242.037.  MINIMUM STANDARDS.  (a)  The board may adopt,
   1-65  publish, and enforce minimum standards relating to:
   1-66              (1)  the construction of an institution, including
   1-67  plumbing, heating, lighting, ventilation, and other housing
   1-68  conditions, to ensure the residents' health, safety, comfort, and
    2-1  protection from fire hazard;
    2-2              (2)  the regulation of the number and qualification of
    2-3  all personnel, including management and nursing personnel,
    2-4  responsible for any part of the care given to the residents;
    2-5              (3)  requirements for in-service education of all
    2-6  employees who have any contact with the residents;
    2-7              (4)  training on the care of persons with Alzheimer's
    2-8  disease and related disorders for employees who work with those
    2-9  persons;
   2-10              (5)  sanitary and related conditions in an institution
   2-11  and its surroundings, including water supply, sewage disposal, food
   2-12  handling, and general hygiene in order to ensure the residents'
   2-13  health, safety, and comfort;
   2-14              (6)  the dietary needs of each resident according to
   2-15  good nutritional practice or the recommendations of the physician
   2-16  attending the resident;
   2-17              (7)  equipment essential to the residents' health and
   2-18  welfare; and
   2-19              (8)  the use and administration of medication in
   2-20  conformity with applicable law and rules.
   2-21        (b)  Notwithstanding Section 222.0255(b), an institution that
   2-22  is certified as being in compliance with each standard of
   2-23  participation in the state Medicaid program that relates to the
   2-24  same subject matter as a minimum standard established under
   2-25  Subsection (a) is not required to satisfy the minimum standard
   2-26  established under that subsection.
   2-27        SECTION 3.  Section 242.069, Health and Safety Code, is
   2-28  amended by adding Subsection (g) to read as follows:
   2-29        (g)  A penalty collected under this section shall be
   2-30  deposited to the credit of the nursing and convalescent home trust
   2-31  fund established under Section 242.096.
   2-32        SECTION 4.  Subchapter C, Chapter 242, Health and Safety
   2-33  Code, is amended by adding Section 242.070 to read as follows:
   2-34        Sec. 242.070.  APPLICATION OF OTHER LAW.  The department may
   2-35  not assess a penalty under both this subchapter and Section 32.021,
   2-36  Human Resources Code, for a violation arising out of the same act
   2-37  or failure to act.
   2-38        SECTION 5.  Chapter 242, Health and Safety Code, is amended
   2-39  by adding Subchapter H to read as follows:
   2-40            SUBCHAPTER H.  ARBITRATION OF CERTAIN DISPUTES
   2-41        Sec. 242.251.  SCOPE OF SUBCHAPTER.  This subchapter applies
   2-42  to any dispute between an institution licensed under this chapter
   2-43  and the department relating to:
   2-44              (1)  renewal of a license under Section 242.033;
   2-45              (2)  suspension or revocation of a license under
   2-46  Section 242.061;
   2-47              (3)  assessment of a civil penalty under Section
   2-48  242.065;
   2-49              (4)  assessment of a monetary penalty under Section
   2-50  242.066; or
   2-51              (5)  assessment of a penalty as described by Section
   2-52  32.021(k), Human Resources Code.
   2-53        Sec. 242.252.  ELECTION OF ARBITRATION.  (a)  An affected
   2-54  institution may elect binding arbitration of any dispute to which
   2-55  this subchapter applies. Arbitration under this subchapter is an
   2-56  alternative to a contested case hearing or to a judicial proceeding
   2-57  relating to the assessment of a civil penalty.
   2-58        (b)  An affected institution may elect arbitration under this
   2-59  subchapter by filing the election with the department not later
   2-60  than the 10th day after a notice of hearing relating to any dispute
   2-61  described by Section 242.251 is received by the institution.
   2-62        (c)  The department may elect arbitration under this
   2-63  subchapter by notifying the institution of the election not later
   2-64  than the date that the institution may elect arbitration under
   2-65  Subsection (b).
   2-66        (d)  An election to engage in arbitration under this
   2-67  subchapter is irrevocable and binding on the institution and the
   2-68  department.
   2-69        Sec. 242.253.  ARBITRATION PROCEDURES.  (a)  The arbitration
   2-70  shall be conducted by an arbitrator.
    3-1        (b)  The arbitration and the appointment of the arbitrator
    3-2  shall be conducted in accordance with rules adopted by the chief
    3-3  administrative law judge of the State Office of Administrative
    3-4  Hearings.  Before adopting rules under this subsection, the chief
    3-5  administrative law judge shall consult with the department and
    3-6  shall consider appropriate rules developed by any nationally
    3-7  recognized association that performs arbitration services.
    3-8        (c)  The department shall pay the cost of the arbitration if
    3-9  the department elects the arbitration.  The cost of the arbitration
   3-10  shall be shared equally by the department and the institution if
   3-11  the institution elects the arbitration.  The total fees and
   3-12  expenses paid for an arbitrator for a day may not exceed $500.
   3-13        (d)  The State Office of Administrative Hearings may
   3-14  designate a nationally recognized association that performs
   3-15  arbitration services to conduct arbitrations under this subchapter
   3-16  and may, after consultation with the department, contract with that
   3-17  association for the arbitrations.
   3-18        Sec. 242.254.  ARBITRATOR; QUALIFICATIONS.  Each arbitrator
   3-19  must be on an approved list of a nationally recognized association
   3-20  that performs arbitration services or be otherwise qualified as
   3-21  provided in the rules adopted under Section 242.253(b).
   3-22        Sec. 242.255.  ARBITRATOR; SELECTION.  The arbitrator shall
   3-23  be appointed in accordance with the rules adopted under Section
   3-24  242.253(b).
   3-25        Sec. 242.256.  DUTIES OF ARBITRATOR.  The arbitrator shall:
   3-26              (1)  protect the interests of the department and the
   3-27  institution;
   3-28              (2)  ensure that all relevant evidence has been
   3-29  disclosed to the arbitrator, department, and institution; and
   3-30              (3)  render an order consistent with this chapter and
   3-31  the rules adopted under this chapter.
   3-32        Sec. 242.257.  SCHEDULING OF ARBITRATION.  (a)  The
   3-33  arbitrator conducting the arbitration shall schedule arbitration to
   3-34  be held not later than the 90th day after the date the arbitrator
   3-35  is selected and shall notify the department and the institution of
   3-36  the scheduled date.
   3-37        (b)  The arbitrator may grant a continuance of the
   3-38  arbitration at the request of the department or institution.  The
   3-39  arbitrator may not unreasonably deny a request for a continuance.
   3-40        Sec. 242.258.  EXCHANGE AND FILING OF INFORMATION.  Not later
   3-41  than the seventh day before the first day of arbitration, the
   3-42  department and the institution shall exchange and file with the
   3-43  arbitrator:
   3-44              (1)  all documentary evidence not previously exchanged
   3-45  and filed that is relevant to the dispute; and
   3-46              (2)  information relating to a proposed resolution of
   3-47  the dispute.
   3-48        Sec. 242.259.  ATTENDANCE REQUIRED.  (a)  The arbitrator may
   3-49  proceed in the absence of any party or representative of a party
   3-50  who, after notice of the proceeding, fails to be present or to
   3-51  obtain a postponement.
   3-52        (b)  An arbitrator may not make an order solely on the
   3-53  default of a party and shall require the party who is present to
   3-54  submit evidence, as required by the arbitrator, before making an
   3-55  award.
   3-56        Sec. 242.260.  TESTIMONY; RECORD.  (a)  The arbitrator may
   3-57  require witnesses to testify under oath and shall require testimony
   3-58  under oath if requested by the department or the institution.
   3-59        (b)  The department shall make an electronic recording of the
   3-60  proceeding.
   3-61        (c)  An official stenographic record of the proceeding is not
   3-62  required, but the department or the institution may make a
   3-63  stenographic record.  The party that makes the stenographic record
   3-64  shall pay the expense of having the record made.
   3-65        Sec. 242.261.  EVIDENCE.  (a)  The department or the
   3-66  institution may offer evidence as they desire and shall produce
   3-67  additional evidence as the arbitrator considers necessary to
   3-68  understand and resolve the dispute.
   3-69        (b)  The arbitrator is the judge of the relevance and
   3-70  materiality of the evidence offered.  Strict conformity to rules
    4-1  applicable to judicial proceedings is not required.
    4-2        Sec. 242.262.  CLOSING STATEMENTS; BRIEFS.  The department
    4-3  and the institution may present closing statements as they desire,
    4-4  but the record may not remain open for written briefs unless
    4-5  requested by the arbitrator.
    4-6        Sec. 242.263.  EX PARTE CONTACTS PROHIBITED.  (a)  Except as
    4-7  provided by Subsection (b), the department and the institution may
    4-8  not communicate with an arbitrator other than at an oral hearing
    4-9  unless the parties and the arbitrator agree otherwise.
   4-10        (b)  Any oral or written communication, other than a
   4-11  communication authorized under Subsection (a), from the parties to
   4-12  an arbitrator shall be directed to the association that is
   4-13  conducting the arbitration or, if there is no association
   4-14  conducting the arbitration, to the State Office of Administrative
   4-15  Hearings, for transmittal to the arbitrator.
   4-16        Sec. 242.264.  ORDER.  (a)  The arbitrator may enter any
   4-17  order that may be entered by the department, board, commissioner,
   4-18  or court under this chapter in relation to a dispute described by
   4-19  Section 242.251.
   4-20        (b)  The arbitrator shall enter the order not later than the
   4-21  60th day after the last day of the arbitration.
   4-22        (c)  The arbitrator shall base the order on the facts
   4-23  established at arbitration, including stipulations of the parties,
   4-24  and on the law as properly applied to those facts.
   4-25        (d)  The order must:
   4-26              (1)  be in writing;
   4-27              (2)  be signed and dated by the arbitrator; and
   4-28              (3)  include a statement of the arbitrator's decision
   4-29  on the contested issues and the department's and institution's
   4-30  stipulations on uncontested issues.
   4-31        (e)  The arbitrator shall file a copy of the order with the
   4-32  department and shall notify the department and the institution in
   4-33  writing of the decision.
   4-34        Sec. 242.265.  EFFECT OF ORDER.  An order of an arbitrator
   4-35  under this subchapter is final and binding on all parties.  Except
   4-36  as provided by Section 242.267, there is no right to appeal.
   4-37        Sec. 242.266.  CLERICAL ERROR.  For the purpose of correcting
   4-38  a clerical error, an arbitrator retains jurisdiction of the award
   4-39  for 20 days after the date of the award.
   4-40        Sec. 242.267.  COURT VACATING ORDER.  (a)  On application of
   4-41  the institution, a court shall vacate an arbitrator's order with
   4-42  respect to an arbitration conducted at the election of the
   4-43  department on a finding that:
   4-44              (1)  the order was procured by corruption, fraud, or
   4-45  misrepresentation;
   4-46              (2)  the decision of the arbitrator was arbitrary or
   4-47  capricious and against the weight of the evidence; or
   4-48              (3)  the order exceeded the jurisdiction of the
   4-49  arbitrator under Section 242.264(a).
   4-50        (b)  If the order is vacated, the dispute shall be remanded
   4-51  to the department for another arbitration proceeding.
   4-52        (c)  A suit to vacate an arbitrator's order must be filed not
   4-53  later than the 30th day after:
   4-54              (1)  the date of the award; or
   4-55              (2)  the date the institution knew or should have known
   4-56  of a basis for suit under this section, but in no event later than
   4-57  the first anniversary of the date of the order.
   4-58        (d)  Venue for a suit to vacate an arbitrator's order is in
   4-59  the county in which the arbitration was conducted.
   4-60        Sec. 242.268.  NO ARBITRATION OF EMERGENCY ORDER OR CLOSING
   4-61  ORDER.  This subchapter does not apply to an order issued under
   4-62  Section 242.062.
   4-63        SECTION 6.  (a)  This Act takes effect September 1, 1995.
   4-64        (b)  Subchapter H, Chapter 242, Health and Safety Code, as
   4-65  added by this Act, applies only to a dispute described by Section
   4-66  242.251, Health and Safety Code, as added by this Act, with respect
   4-67  to which formal proceedings are commenced on or after January 1,
   4-68  1996.
   4-69        SECTION 7.  The importance of this legislation and the
   4-70  crowded condition of the calendars in both houses create an
    5-1  emergency and an imperative public necessity that the
    5-2  constitutional rule requiring bills to be read on three several
    5-3  days in each house be suspended, and this rule is hereby suspended.
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