By:  Leedom, Patterson                                S.B. No. 1596
            Cain
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to arbitration of alleged violations of law relating to
    1-2  convalescent and nursing homes and related institutions.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 242, Health and Safety Code, is amended
    1-5  by adding Subchapter H to read as follows:
    1-6            SUBCHAPTER H.  ARBITRATION OF CERTAIN DISPUTES
    1-7        Sec. 242.251.  SCOPE OF SUBCHAPTER.  This subchapter applies
    1-8  to any dispute between an institution licensed under this chapter
    1-9  and the department relating to:
   1-10              (1)  renewal of a license under Section 242.033;
   1-11              (2)  suspension or revocation of a license or closing
   1-12  of a facility under Section 242.061 or 242.062;
   1-13              (3)  assessment of a civil penalty under Section
   1-14  242.065; or
   1-15              (4)  assessment of an administrative penalty under
   1-16  Section 242.066.
   1-17        Sec. 242.252.  ELECTION OF ARBITRATION.  (a)  An affected
   1-18  institution may elect binding arbitration of any dispute to which
   1-19  this subchapter applies. Arbitration under this subchapter is an
   1-20  alternative to a contested case hearing or to a judicial proceeding
   1-21  relating to the assessment of a civil penalty.
   1-22        (b)  An affected institution may elect arbitration under this
   1-23  subchapter by filing the election with the department not later
   1-24  than the 10th day after a notice of hearing relating to any dispute
    2-1  described by Section 242.251 is received by the institution.
    2-2        (c)  An election to engage in arbitration under this
    2-3  subchapter is irrevocable and binding on the institution and the
    2-4  department.
    2-5        Sec. 242.253.  ARBITRATION PROCEDURES.  (a)  The arbitration
    2-6  shall be conducted by the American Arbitration Association or
    2-7  another nationally recognized association that performs arbitration
    2-8  services.
    2-9        (b)  The arbitration shall be conducted in accordance with
   2-10  the American Arbitration Association's commercial arbitration rules
   2-11  in effect November 1, 1993.
   2-12        (c)  The cost of the arbitration shall be shared equally by
   2-13  the department and the institution electing arbitration.  An
   2-14  arbitrator's fee may not exceed $500 per day.
   2-15        Sec. 242.254.  ARBITRATOR; QUALIFICATIONS.  The arbitrator
   2-16  must be on an approved list of the American Arbitration Association
   2-17  or another nationally recognized association that performs
   2-18  arbitration services.
   2-19        Sec. 242.255.  ARBITRATOR; SELECTION.  The arbitration shall
   2-20  be conducted by one arbitrator appointed from a panel of
   2-21  arbitrators provided by the American Arbitration Association or
   2-22  another nationally recognized association that performs arbitration
   2-23  services.  The appointment shall be made in accordance with the
   2-24  American Arbitration Association's commercial arbitration rules in
   2-25  effect November 1, 1993.
   2-26        Sec. 242.256.  DUTIES OF ARBITRATOR.  The arbitrator shall:
   2-27              (1)  protect the interests of the department and the
    3-1  institution;
    3-2              (2)  ensure that all relevant evidence has been
    3-3  disclosed to the arbitrator, department, and institution; and
    3-4              (3)  render an order consistent with this chapter and
    3-5  the rules adopted under this chapter.
    3-6        Sec. 242.257.  SCHEDULING OF ARBITRATION.  (a)  The
    3-7  association conducting the arbitration shall schedule arbitration
    3-8  to be held not later than the 90th day after the date the
    3-9  arbitrator is selected and shall notify the department and the
   3-10  institution of the scheduled date.
   3-11        (b)  The arbitrator may grant a continuance of the
   3-12  arbitration at the request of the department or institution.  The
   3-13  arbitrator may not unreasonably deny a request for a continuance.
   3-14        Sec. 242.258.  EXCHANGE AND FILING OF INFORMATION.  Not later
   3-15  than the seventh day before the first day of arbitration, the
   3-16  department and the institution shall exchange and file with the
   3-17  arbitrator:
   3-18              (1)  all documentary evidence not previously exchanged
   3-19  and filed that is relevant to the dispute; and
   3-20              (2)  information relating to a proposed resolution of
   3-21  the dispute.
   3-22        Sec. 242.259.  ATTENDANCE REQUIRED.  (a)  The arbitrator may
   3-23  proceed in the absence of any party or representative of a party
   3-24  who, after notice of the proceeding, fails to be present or to
   3-25  obtain a postponement.
   3-26        (b)  An arbitrator may not make an order solely on the
   3-27  default of a party and shall require the party who is present to
    4-1  submit evidence, as required by the arbitrator, before making an
    4-2  award.
    4-3        Sec. 242.260.  TESTIMONY; RECORD.  (a)  The arbitrator may
    4-4  require witnesses to testify under oath and shall require testimony
    4-5  under oath if requested by the department or the institution.
    4-6        (b)  The department shall make an electronic recording of the
    4-7  proceeding.
    4-8        (c)  An official stenographic record of the proceeding is not
    4-9  required, but the department or the institution may make a
   4-10  stenographic record.  The party that makes the stenographic record
   4-11  shall pay the expense of having the record made.
   4-12        Sec. 242.261.  EVIDENCE.  (a)  The department or the
   4-13  institution may offer evidence as they desire and shall produce
   4-14  additional evidence as the arbitrator considers necessary to
   4-15  understand and resolve the dispute.
   4-16        (b)  The arbitrator is the judge of the relevance and
   4-17  materiality of the evidence offered.  Strict conformity to rules
   4-18  applicable to judicial proceedings is not required.
   4-19        Sec. 242.262.  CLOSING STATEMENTS; BRIEFS.  The department
   4-20  and the institution may present closing statements as they desire,
   4-21  but the record may not remain open for written briefs unless
   4-22  requested by the arbitrator.
   4-23        Sec. 242.263.  EX PARTE CONTACTS PROHIBITED.  (a)  Except as
   4-24  provided by Subsection (b), the department and the institution may
   4-25  not communicate with the arbitrator other than at an oral hearing
   4-26  unless the parties and the arbitrator agree otherwise.
   4-27        (b)  Any oral or written communication, other than a
    5-1  communication authorized under Subsection (a), from the parties to
    5-2  the arbitrator shall be directed to the association that is
    5-3  conducting the arbitration for transmittal to the arbitrator.
    5-4        Sec. 242.264.  ORDER.  (a)  The arbitrator may enter any
    5-5  order that may be entered by the department, board, commissioner,
    5-6  or court under this chapter in relation to a dispute described by
    5-7  Section 242.251.
    5-8        (b)  The arbitrator shall enter the order not later than the
    5-9  60th day after the last day of the arbitration.
   5-10        (c)  The arbitrator shall base the order on the facts
   5-11  established at arbitration, including stipulations of the parties,
   5-12  and on the law as properly applied to those facts.
   5-13        (d)  The order must:
   5-14              (1)  be in writing;
   5-15              (2)  be signed and dated by the arbitrator; and
   5-16              (3)  include a statement of the arbitrator's decision
   5-17  on the contested issues and the department's and institution's
   5-18  stipulations on uncontested issues.
   5-19        (e)  The arbitrator shall file a copy of the order with the
   5-20  department and shall notify the department and the institution in
   5-21  writing of the decision.
   5-22        Sec. 242.265.  EFFECT OF ORDER.  An order of an arbitrator
   5-23  under this subchapter is final and binding on all parties.  Except
   5-24  as provided by Section 242.267, there is no right to appeal.
   5-25        Sec. 242.266.  CLERICAL ERROR.  For the purpose of correcting
   5-26  a clerical error, an arbitrator retains jurisdiction of the award
   5-27  for 20 days after the date of the award.
    6-1        Sec. 242.267.  COURT VACATING ORDER.  (a)  On application of
    6-2  the department or an institution, a court shall vacate an
    6-3  arbitrator's order on a finding that:
    6-4              (1)  the order was procured by corruption, fraud, or
    6-5  misrepresentation;
    6-6              (2)  the decision of the arbitrator was arbitrary or
    6-7  capricious and against the weight of the evidence; or
    6-8              (3)  the order exceeded the jurisdiction of the
    6-9  arbitrator under Section 242.264(a).
   6-10        (b)  If the order is vacated, the dispute shall be remanded
   6-11  to the department for another arbitration proceeding.
   6-12        (c)  A suit to vacate an arbitrator's order must be filed not
   6-13  later than the 30th day after:
   6-14              (1)  the date of the award; or
   6-15              (2)  the date the appealing party knew or should have
   6-16  known of a basis for suit under this section, but in no event later
   6-17  than 12 months after the date of the order.
   6-18        (d)  Venue for a suit to vacate an arbitrator's order is in
   6-19  the county in which the arbitration was conducted.
   6-20        Sec. 242.268.  EMERGENCY ORDER OR CLOSING ORDER NOT STAYED.
   6-21  An order issued under Section 242.062 is not stayed pending an
   6-22  arbitration under this subchapter.
   6-23        SECTION 2.  This Act takes effect September 1, 1995, and
   6-24  expires August 31, 1997.  It applies only to disputes described by
   6-25  Section 242.251, Health and Safety Code, as added by this Act, with
   6-26  respect to which formal proceedings are commenced on or after
   6-27  January 1, 1996, and before August 31, 1997.  An arbitration
    7-1  proceeding commenced prior to the expiration of this Act is covered
    7-2  by the law as it existed on the date on which the proceeding was
    7-3  commenced, and the former law is continued in effect for this
    7-4  purpose.
    7-5        SECTION 3.  The importance of this legislation and the
    7-6  crowded condition of the calendars in both houses create an
    7-7  emergency and an imperative public necessity that the
    7-8  constitutional rule requiring bills to be read on three several
    7-9  days in each house be suspended, and this rule is hereby suspended.