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.