By Leedom S.B. No. 1596
74R7190 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to arbitration of alleged violations of law relating to
1-3 convalescent and nursing homes and related institutions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 242, Health and Safety Code, is amended
1-6 by adding Subchapter H to read as follows:
1-7 SUBCHAPTER H. ARBITRATION OF CERTAIN DISPUTES
1-8 Sec. 242.251. SCOPE OF SUBCHAPTER. This subchapter applies
1-9 to any dispute between an institution licensed under this chapter
1-10 and the department relating to:
1-11 (1) renewal of a license under Section 242.033;
1-12 (2) suspension or revocation of a license or closing
1-13 of a facility under Section 242.061 or 242.062; or
1-14 (3) assessment of an administrative penalty under
1-15 Section 242.066.
1-16 Sec. 242.252. ELECTION OF ARBITRATION. (a) An affected
1-17 institution may elect binding arbitration of any dispute to which
1-18 this subchapter applies. Arbitration under this subchapter is an
1-19 alternative to a contested case hearing.
1-20 (b) An affected institution may elect arbitration under this
1-21 subchapter by filing the election with the department not later
1-22 than the 10th day after a notice of hearing relating to any dispute
1-23 described by Subsection 242.251 is received by the institution.
1-24 (c) An election to engage in arbitration under this
2-1 subchapter is irrevocable and binding on the institution and the
2-2 department.
2-3 Sec. 242.253. ARBITRATION PROCEDURES. (a) The arbitration
2-4 shall be conducted by an arbitrator.
2-5 (b) The attorney general shall adopt rules for arbitration
2-6 under this subchapter consistent with generally recognized
2-7 arbitration principles and procedures.
2-8 (c) The cost of the arbitration shall be shared equally by
2-9 the department and the institution electing arbitration.
2-10 Sec. 242.254. ARBITRATOR; QUALIFICATIONS. The arbitrator
2-11 must be a member of the National Academy of Arbitrators or be on an
2-12 approved list of the American Arbitration Association or Federal
2-13 Mediation and Conciliation Service.
2-14 Sec. 242.255. ARBITRATOR; SELECTION. If the department and
2-15 the institution cannot agree on an arbitrator, the institution or
2-16 department may request a list of not fewer than three arbitrators
2-17 from the American Arbitration Association or the Federal Mediation
2-18 and Conciliation Service. The institution and the department shall
2-19 alternately eliminate names from the list until one arbitrator
2-20 remains, and that arbitrator shall serve as the arbitrator.
2-21 Sec. 242.256. DUTIES OF ARBITRATOR. The arbitrator shall:
2-22 (1) protect the interests of the department and the
2-23 institution;
2-24 (2) ensure that all relevant evidence has been
2-25 disclosed to the arbitrator, department, and institution; and
2-26 (3) render an order consistent with this chapter and
2-27 the rules adopted under this chapter.
3-1 Sec. 242.257. SCHEDULING OF ARBITRATION. (a) The
3-2 arbitrator shall schedule arbitration to be held not later than the
3-3 90th day after the date the arbitrator is selected and shall notify
3-4 the department and the institution of the scheduled date.
3-5 (b) The arbitrator may grant a continuance of the
3-6 arbitration at the request of the department or institution. The
3-7 arbitrator may not unreasonably deny a request for a continuance.
3-8 Sec. 242.258. EXCHANGE AND FILING OF INFORMATION. Not later
3-9 than the seventh day before the first day of arbitration, the
3-10 department and the institution shall exchange and file with the
3-11 arbitrator:
3-12 (1) all documentary evidence not previously exchanged
3-13 and filed that is relevant to the dispute; and
3-14 (2) information relating to a proposed resolution of
3-15 the dispute.
3-16 Sec. 242.259. ATTENDANCE REQUIRED. A representative of the
3-17 department and a representative of the institution shall attend the
3-18 arbitration prepared to set forth in detail the position of the
3-19 department or institution on unresolved issues and the issues on
3-20 which the department or institution is prepared to stipulate.
3-21 Sec. 242.260. TESTIMONY; RECORD. (a) The arbitrator may
3-22 require witnesses to testify under oath and shall require testimony
3-23 under oath if requested by the department or the institution.
3-24 (b) The department shall make an electronic recording of the
3-25 proceeding.
3-26 (c) An official stenographic record of the proceeding is not
3-27 required, but the department or the institution may make a
4-1 stenographic record. The party that makes the stenographic record
4-2 shall pay the expense of having the record made.
4-3 Sec. 242.261. EVIDENCE. (a) The department or the
4-4 institution may offer evidence as they desire and shall produce
4-5 additional evidence as the arbitrator considers necessary to
4-6 understand and resolve the dispute.
4-7 (b) The arbitrator is the judge of the relevance and
4-8 materiality of the evidence offered. Strict conformity to rules
4-9 applicable to judicial proceedings is not required.
4-10 Sec. 242.262. CLOSING STATEMENTS; BRIEFS. The department
4-11 and the institution may present closing statements as they desire,
4-12 but the record may not remain open for written briefs unless
4-13 requested by the arbitrator.
4-14 Sec. 242.263. EX PARTE CONTACTS PROHIBITED. The department
4-15 and the institution may not communicate with the arbitrator outside
4-16 the arbitration unless the communication is in writing with copies
4-17 provided to the opposing party or the communication relates only to
4-18 procedural matters.
4-19 Sec. 242.264. ORDER. (a) The arbitrator may enter any
4-20 order that may be entered by the department, board, or commissioner
4-21 under this chapter in relation to a dispute described by Section
4-22 242.251.
4-23 (b) The arbitrator shall enter the order not later than the
4-24 60th day after the last day of the arbitration.
4-25 (c) The arbitrator shall base the order on the facts
4-26 established at arbitration, including stipulations of the parties,
4-27 and on the law as properly applied to those facts.
5-1 (d) The order must:
5-2 (1) be in writing;
5-3 (2) be signed and dated by the arbitrator; and
5-4 (3) include a statement of the arbitrator's decision
5-5 on the contested issues and the department's and institution's
5-6 stipulations on uncontested issues.
5-7 (e) The arbitrator shall file a copy of the order with the
5-8 department and shall notify the department and the institution in
5-9 writing of the decision.
5-10 Sec. 242.265. EFFECT OF ORDER. An order of an arbitrator
5-11 under this subchapter is final and binding on all parties. Except
5-12 as provided by Section 242.267, there is no right to appeal.
5-13 Sec. 242.266. CLERICAL ERROR. For the purpose of correcting
5-14 a clerical error, an arbitrator retains jurisdiction of the award
5-15 for 20 days after the date of the award.
5-16 Sec. 242.267. COURT VACATING ORDER. (a) On application of
5-17 the department or an institution, a court shall vacate an
5-18 arbitrator's order on a finding that:
5-19 (1) the order was procured by corruption, fraud, or
5-20 misrepresentation;
5-21 (2) the decision of the arbitrator was arbitrary or
5-22 capricious and against the weight of the evidence; or
5-23 (3) the order exceeded the jurisdiction of the
5-24 arbitrator under Section 242.264(a).
5-25 (b) If the order is vacated, the dispute shall be remanded
5-26 to the department for another arbitration proceeding.
5-27 (c) A suit to vacate an arbitrator's order must be filed not
6-1 later than the 30th day after:
6-2 (1) the date of the award; or
6-3 (2) the date the appealing party knew or should have
6-4 known of a basis for suit under this section, but in no event later
6-5 than 12 months after the date of the order.
6-6 (d) Venue for a suit to vacate an arbitrator's order is in
6-7 the county in which the arbitration was conducted.
6-8 Sec. 242.268. EMERGENCY ORDER OR CLOSING ORDER NOT STAYED.
6-9 An order issued under Section 242.062 is not stayed pending an
6-10 arbitration under this subchapter.
6-11 SECTION 2. This Act takes effect September 1, 1995, and
6-12 applies only to a dispute described by Section 242.251, Health and
6-13 Safety Code, as added by this Act, with respect to which formal
6-14 proceedings are commenced on or after January 1, 1996.
6-15 SECTION 3. The attorney general shall adopt rules as
6-16 required by Section 242.253, Health and Safety Code, as added by
6-17 this Act, not later than December 31, 1995.
6-18 SECTION 4. The importance of this legislation and the
6-19 crowded condition of the calendars in both houses create an
6-20 emergency and an imperative public necessity that the
6-21 constitutional rule requiring bills to be read on three several
6-22 days in each house be suspended, and this rule is hereby suspended.