HBA-NIK H.B. 3451 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 3451
By: Hilderbran
Civil Practices
4/26/1999
Committee Report (Amended)



BACKGROUND AND PURPOSE 

Currently, under Section 242.268 (No Arbitration in Case of Emergency Order
or Closing Order), Health and Safety Code, neither the state nor a nursing
home may elect to resolve disputes using arbitration if the disputes are
subject to Section 242.061 (Denial, Suspension, or Revocation of License),
242.062 (Emergency Suspension or Closing Order, or 242.072 (Other
Remedies), Health and Safety Code.  However, courts have ordered
arbitration in just such situations.  These orders have the effect of
undermining the evident intent of the legislature when it enacted Section
242.268, Health and Safety Code. 

H.B. 3451 prohibits courts from ordering arbitration in cases in which
violations of those provisions are alleged and provides that in instances
in which arbitration is improperly ordered, the arbitration process must be
dismissed and the court in which the underlying dispute was filed must
retain jurisdiction. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 242.061, Health and Safety Code, by adding
Subsection (d), to prohibit a court having jurisdiction of a judicial
review of the matter from ordering arbitration, whether on motion of any
party or on the court's own motion, to resolve a dispute involving the
denial, suspension, or revocation of a license under this section or the
conduct with respect to which the denial, suspension, or revocation of the
license is sought. 

SECTION 2. Amends Section 242.062, Health and Safety Code, by adding
Subsection (e), to prohibit a court having jurisdiction of a judicial
review of the matter from ordering arbitration, whether on motion of any
party or on the court's own motion, to resolve a dispute involving an
emergency suspension or closing order under this section or the conduct
with respect to which the emergency suspension or closing order is sought. 

SECTION 3. Amends Section 242.072, Health and Safety Code, by adding
Subsection (f), to prohibit a court having jurisdiction of a judicial
review of the matter from ordering arbitration, whether on motion of any
party or on the court's own motion, to resolve a dispute involving an order
suspending admissions under this section or the conduct with respect to
which the order suspending admissions is sought. 

SECTION 4. Amends Section 242.094, Health and Safety Code, by adding
Subsection (f), to prohibit a court having jurisdiction of a judicial
review of the matter from ordering arbitration, whether on motion of any
party or the court's own motion, to resolve a dispute involving the
appointment of a trustee, assessment of a civil penalty under Section
242.065 (Civil Penalty), Health and Safety Code, in the same proceeding and
arising out of the same conduct with respect to which the appointment of a
trustee is sought, or conduct with respect to which the appointment of a
trustee or assessment of the civil penalty is sought. 

 SECTION 5. Effective date: September 1, 1999.

SECTION 6. Makes application of this Act prospective.

SECTION 7. Emergency clause.

EXPLANATION OF AMENDMENTS

Amendment #1:

Replaces SECTION 4 of the original bill (proposed Section 242.094(f),
Health and Safety Code), with a new SECTION 4, adding a new Subsection (f)
to prohibit a court having jurisdiction of a judicial review of the matter
from ordering arbitration, whether on motion of any party or on the court's
own motion, to resolve the legal issues of a dispute involving the
appointment of a trustee under this section, or the conduct with respect to
which the appointment of trustee is sought.