HBA-ATS H.B. 3452 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 3452
By: Hilderbran
Civil Practices
4/20/1999
Introduced



BACKGROUND AND PURPOSE 

Section 242.252 (Election of Arbitration), Health and Safety Code,
authorizes a licensed nursing or convalescent home or related institution
to elect arbitration in a dispute with the Texas Department of Human
Services (department) that relates to renewal of a license, suspension or
revocation of a license, assessment of a civil penalty, assessment of a
monetary penalty under, or assessment of a penalty.  This election is made
without approval or agreement from the department, the regulating state
agency.  Consequently, if cases involving death, serious bodily injury,
sexual abuse, or physical abuse of a resident relate to a dispute
concerning the renewal of a license, suspension or revocation of a license,
assessment of a civil penalty, assessment of a monetary penalty under, or
assessment of a penalty, the institution may elect arbitration, as it would
with less serious alleged violations. 

H.B. 3452 prohibits arbitration from being used to resolve a lawsuit that
alleges that there has been death, serious bodily injury, sexual abuse, or
physical abuse of a resident, except that  the department is authorized to
elect arbitration in this type of lawsuit only if the affected institution
agrees to arbitration.  The affected institution must respond to the
department's request for arbitration within 10 days after the department
files the request for arbitration. 

In addition, this bill authorizes an affected institution to elect
arbitration by filing the election with the court, rather than with the
department, in which the lawsuit is pending and sending notice of the
election to the department and the office of the attorney general.
Likewise, the department may elect arbitration by filing the election with
the court, rather than by notifying the institution, in which the lawsuit
is pending and by notifying the institution of the election not later than
the date that the institution is authorized to elect arbitration.  Under
this bill, if arbitration is not permitted or the election of arbitration
is not timely filed, the court must dismiss the arbitration election and
retain jurisdiction of the lawsuit, and the State Office of Administrative
Hearings (office) must dismiss the arbitration.  The office has no
jurisdiction over the lawsuit.  

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 242.252, Health and Safety Code, as follows:

(a) Makes a conforming change.

(b) Authorizes an affected institution to elect arbitration by filing the
election with the court, rather than with the Texas Department of Human
Services (department), in which the lawsuit is pending, and sending notice
of the election to the department and the office of the attorney general.
Provides that the election must be filed within 10 days after the answer is
due or the answer is filed, whichever is sooner, rather than after a notice
of hearing relating to any dispute described by Section 242.251 (Scope of
Subchapter) is received by the institution. 

(c) Authorizes the department to elect arbitration by filing the election
with the court, rather than by notifying the institution, in which the
lawsuit is pending and by notifying the  institution of the election not
later than the date that the institution is authorized to elect arbitration
under Subsection (b). 

(d) Adds this subsection to prohibit arbitration from being used to resolve
a lawsuit that alleges that there has been a death, serious bodily injury,
sexual abuse, or physical abuse of a resident, except as provided by this
subsection.  Authorizes the department to elect arbitration in a lawsuit
that alleges that there has been a death, serious bodily injury, sexual
abuse, or physical abuse of a resident only if the affected institution
agrees to arbitration. Provides that the affected institution must respond
to the department's request for arbitration within 10 days after the
department files the request for arbitration. 

(e) Adds this subsection to provide that, if arbitration is not permitted
or the election of arbitration is not timely filed, the court will dismiss
the arbitration election and retain jurisdiction of the lawsuit, and to
require the State Office of Administrative Hearings (office) to dismiss the
arbitration and provide that the office has no jurisdiction over the
lawsuit.  

(f) Makes a conforming change.

SECTION 2.Effective date: September 1, 1999.
  Makes application of this Act prospective.

SECTION 3.Emergency clause.