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A BILL TO BE ENTITLED
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AN ACT
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relating to alternative methods of dispute resolution in certain |
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disputes between the Department of Aging and Disability Services |
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and an assisted living facility licensed by the department. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 247.051, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 247.051. INFORMAL DISPUTE RESOLUTION. (a) The Health |
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and Human Services Commission by rule shall establish an informal |
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dispute resolution process to address disputes between a facility |
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and the department as a result of the survey review conducted by the |
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department in accordance with this section. The process must |
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provide for adjudication by an appropriate disinterested person of |
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disputes relating to the results of a survey [a proposed
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enforcement action or related proceeding under this chapter]. The |
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informal dispute resolution process must require: |
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(1) the assisted living facility to request informal |
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dispute resolution not later than the 10th day after the date of |
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notification by the department of the violation of a standard or |
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standards; |
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(2) the Health and Human Services Commission to |
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complete the process not later than the 90th [30th] day after the |
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date of receipt of a request from the assisted living facility for |
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informal dispute resolution; [and] |
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(3) any individual representing an assisted living |
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facility or the department in an informal dispute resolution |
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process to register with the Health and Human Services Commission; |
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(4) the department to prove a violation of a standard; |
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(5) that, not later than the fifth business day after |
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the date an assisted living facility requests an informal dispute |
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resolution, the department forward to the assisted living facility |
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and to the Health and Human Services Commission a copy of all |
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information prepared or gathered by the department in connection |
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with the survey, excluding the name of any person who may have filed |
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a complaint in connection with the survey; |
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(6) that all legal and factual arguments raised during |
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the informal dispute resolution process be fully considered and |
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impartially decided; |
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(7) that a presumption of truth not be given to a |
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statement contained in the department's statement of deficiencies; |
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(8) that ex parte communications concerning the |
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substance of any argument relating to a survey under consideration |
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not occur between the informal dispute resolution staff and another |
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person; |
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(9) that the assisted living facility and the |
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department be given a reasonable opportunity to submit arguments |
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and evidence and to respond to arguments and evidence presented |
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against them; and |
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(10) that an architect or engineer with experience |
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with life safety code issues affecting assisted living facilities |
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decide disputes relating to life safety code issues. |
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(b) Unless arbitration is elected in accordance with |
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Subchapter E, the [and disclose the following:
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[(A)
the individual's employment history during
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the preceding five years, including employment in regulatory
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agencies of this state and other states;
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[(B)
ownership, including the identity of the
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controlling person or persons, of the assisted living facility the
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individual is representing before the Health and Human Services
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Commission; and
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[(C)
the identity of other entities the
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individual represents or has represented before the Health and
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Human Services Commission during the preceding 24 months.
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[(b)
The Health and Human Services Commission shall adopt
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rules to adjudicate claims in contested cases.
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[(c) The] Health and Human Services Commission may not |
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delegate its responsibility to administer the informal dispute |
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resolution process established by this section to another state |
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agency. |
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(c) A statement of deficiency prepared by the department |
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following a survey is confidential pending the outcome of the |
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informal dispute resolution process. Information concerning the |
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outcome of a survey may not be posted by the department on any |
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website pending the outcome of the informal dispute resolution |
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process. |
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SECTION 2. Chapter 247, Health and Safety Code, is amended |
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by adding Subchapter E to read as follows: |
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SUBCHAPTER E. ARBITRATION |
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Sec. 247.081. SCOPE OF SUBCHAPTER. This subchapter applies |
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to any dispute between a facility licensed under this chapter and |
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the department relating to: |
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(1) renewal of a license under Section 247.023; |
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(2) suspension or revocation of a license under |
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Section 247.041; |
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(3) assessment of a civil penalty under Section |
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247.045; |
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(4) assessment of an administrative penalty under |
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Section 247.0451; or |
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(5) an informal dispute resolution under Section |
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247.051. |
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Sec. 247.082. ARBITRATION PROCEDURES. (a) The arbitration |
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shall be conducted by an arbitrator. |
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(b) The arbitration and the appointment of the arbitrator |
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shall be conducted in accordance with rules adopted by the chief |
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administrative law judge of the State Office of Administrative |
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Hearings. Before adopting rules under this subsection, the chief |
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administrative law judge shall consult with the department and |
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shall consider appropriate rules developed by any nationally |
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recognized association that performs arbitration services. |
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(c) The party that elects arbitration shall pay the cost of |
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the arbitration. The total fees and expenses paid for an arbitrator |
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for a day may not exceed $1,000. |
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(d) The State Office of Administrative Hearings may |
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designate a nationally recognized association that performs |
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arbitration services to conduct arbitrations under this subchapter |
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and may, after consultation with the department, contract with that |
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association for the arbitrations. |
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(e) On request by the department, the attorney general may |
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represent the department in the arbitration. |
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Sec. 247.083. ARBITRATOR QUALIFICATIONS. Each arbitrator |
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must be on an approved list of a nationally recognized association |
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that performs arbitration services or be otherwise qualified as |
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provided in the rules adopted under Section 247.082(b). |
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Sec. 247.084. ARBITRATOR SELECTION. The arbitrator shall |
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be appointed in accordance with the rules adopted under Section |
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247.082(b). |
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Sec. 247.085. ARBITRATOR DUTIES. The arbitrator shall: |
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(1) protect the interests of the department and the |
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facility; |
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(2) ensure that all relevant evidence has been |
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disclosed to the arbitrator, department, and facility; and |
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(3) render an order consistent with this chapter and |
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the rules adopted under this chapter. |
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Sec. 247.086. SCHEDULING OF ARBITRATION. (a) The |
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arbitrator conducting the arbitration shall schedule arbitration |
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to be held not later than the 90th day after the date the arbitrator |
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is selected and shall notify the department and the facility of the |
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scheduled date. |
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(b) The arbitrator may grant a continuance of the |
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arbitration at the request of the department or facility. The |
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arbitrator may not unreasonably deny a request for a continuance. |
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Sec. 247.087. EXCHANGE AND FILING OF INFORMATION. Not |
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later than the seventh day before the first day of arbitration, the |
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department and the facility shall exchange and file with the |
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arbitrator: |
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(1) all documentary evidence not previously exchanged |
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and filed that is relevant to the dispute; and |
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(2) information relating to a proposed resolution of |
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the dispute. |
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Sec. 247.088. ATTENDANCE. (a) The arbitrator may proceed |
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in the absence of any party or representative of a party who, after |
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notice of the proceeding, fails to be present or to obtain a |
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postponement. |
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(b) An arbitrator may not make an order solely on the |
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default of a party and shall require the party who is present to |
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submit evidence, as required by the arbitrator, before making an |
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award. |
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Sec. 247.089. TESTIMONY; RECORD. (a) The arbitrator may |
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require witnesses to testify under oath and shall require testimony |
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under oath if requested by the department or the facility. |
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(b) The department shall make an electronic recording of the |
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proceeding. |
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(c) An official stenographic record of the proceeding is not |
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required, but the department or the facility may make a |
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stenographic record. The party that makes the stenographic record |
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shall pay the expense of having the record made. |
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Sec. 247.090. EVIDENCE. (a) The department or the facility |
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may offer evidence and shall produce additional evidence as the |
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arbitrator considers necessary to understand and resolve the |
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dispute. |
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(b) The arbitrator is the judge of the relevance and |
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materiality of the evidence offered. Strict conformity to rules |
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applicable to judicial proceedings is not required. |
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Sec. 247.091. CLOSING STATEMENTS; BRIEFS. The department |
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and the facility may present closing statements, but the record |
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does not remain open for written briefs unless required by the |
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arbitrator. |
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Sec. 247.092. EX PARTE CONTACTS PROHIBITED. (a) Except as |
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provided by Subsection (b), the department and the facility may not |
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communicate with an arbitrator other than at an oral hearing unless |
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the parties and the arbitrator agree otherwise. |
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(b) Any oral or written communication, other than a |
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communication authorized under Subsection (a), from the parties to |
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an arbitrator shall be directed to the association that is |
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conducting the arbitration or, if there is no association |
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conducting the arbitration, to the State Office of Administrative |
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Hearings for transmittal to the arbitrator. |
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Sec. 247.093. ORDER. (a) The arbitrator may enter any |
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order that may be entered by the department, board, commissioner, |
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or court under this chapter in relation to a dispute described by |
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Section 247.081. |
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(b) The arbitrator shall enter the order not later than the |
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60th day after the last day of the arbitration. |
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(c) The arbitrator shall base the order on the facts |
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established at arbitration, including stipulations of the parties, |
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and on the law as properly applied to those facts. |
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(d) The order must: |
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(1) be in writing; |
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(2) be signed and dated by the arbitrator; and |
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(3) include a statement of the arbitrator's decision |
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on the contested issues and the department's and facility's |
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stipulations on uncontested issues. |
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(e) The arbitrator shall file a copy of the order with the |
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department and shall notify the department and the facility in |
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writing of the decision. |
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Sec. 247.094. EFFECT OF ORDER. An order of an arbitrator |
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under this subchapter is final and binding on all parties. Except |
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as provided by Section 247.096, there is no right to appeal. |
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Sec. 247.095. CLERICAL ERROR. For the purpose of |
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correcting a clerical error, an arbitrator retains jurisdiction of |
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the award until the 20th day after the date of the award. |
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Sec. 247.096. COURT VACATING ORDER. (a) On a finding |
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described by Subsection (b), a court shall: |
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(1) on application of a facility, vacate an |
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arbitrator's order with respect to an arbitration conducted at the |
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election of the department; or |
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(2) on application of the department, vacate an |
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arbitrator's order with respect to an arbitration conducted at the |
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election of a facility. |
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(b) A court shall vacate an arbitrator's order under |
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Subsection (a) only on a finding that: |
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(1) the order was procured by corruption, fraud, or |
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misrepresentation; |
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(2) the decision of the arbitrator was arbitrary or |
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capricious and against the weight of the evidence; or |
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(3) the order exceeded the jurisdiction of the |
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arbitrator under Section 247.093(a). |
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(c) If the order is vacated, the dispute shall be remanded |
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to the department for another arbitration proceeding. |
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(d) A suit to vacate an arbitrator's order must be filed not |
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later than the 30th day after: |
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(1) the date of the award; or |
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(2) the date the facility or department knew or should |
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have known of a basis for suit under this section, but in no event |
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later than the first anniversary of the date of the order. |
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(e) Venue for a suit to vacate an arbitrator's order is in |
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the county in which the arbitration was conducted. |
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Sec. 247.097. ENFORCEMENT OF CERTAIN ARBITRATION ORDERS FOR |
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CIVIL PENALTIES. (a) This section applies only to a suit for the |
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assessment of a civil penalty under Section 247.045 in which |
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binding arbitration has been elected under this subchapter as an |
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alternative to the judicial proceeding. |
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(b) On application of a party to the suit, the district |
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court in which the underlying suit has been filed shall enter a |
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judgment in accordance with the arbitrator's order unless, within |
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the time limit prescribed by Section 247.096(d)(2), a motion is |
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made to the court to vacate the arbitrator's order in accordance |
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with Section 247.096. |
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(c) A judgment filed under Subsection (b) is enforceable in |
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the same manner as any other judgment of the court. The court may |
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award costs for an application made under Subsection (b) and for any |
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proceedings held after the application is made. |
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(d) Subsection (b) does not affect the right of a party, in |
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accordance with Section 247.096 and within the time limit |
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prescribed by Section 247.096(d)(2), if applicable, to make a |
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motion to the court or initiate a proceeding in court as provided by |
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law to vacate the arbitrator's order or to vacate a judgment of the |
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court entered in accordance with the arbitrator's order. |
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SECTION 3. The changes in law made by this Act apply only to |
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a dispute described by Section 247.051, Health and Safety Code, as |
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amended by this Act, or Section 247.081, Health and Safety Code, as |
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added by this Act, that occurs on or after the effective date of |
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this Act. A dispute that occurs before the effective date of this |
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Act is governed by the law in effect immediately before the |
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effective date of this Act, and that law is continued in effect for |
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that purpose. |
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SECTION 4. This Act takes effect September 1, 2011. |