HBA-ATS H.B. 3452 76(R)BILL ANALYSIS Office of House Bill AnalysisH.B. 3452 By: Hilderbran Civil Practices 4/26/1999 Committee Report (Amended) 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. EXPLANATION OF AMENDMENTS Amendment No. 1: Amends H.B. 3452 in SECTION 1 (existing Section 242.252(b), Health and Safety Code) to add the provision that, if a civil penalty is requested after the initial filing of a Section 242.094 (Involuntary Appointment) lawsuit through the filing of an amended or supplemental pleading, an affected institution must elect arbitration within 10 days after the amended or supplemental pleading is served on the affected institution or its counsel. Amendment No. 2: Amends H.B. 3452 in SECTION 1 (existing Section 242.252, Health and Safety Code) by replacing the proposed text of Subsection (d). As amended, Subsection (d) prohibits arbitration from being used to resolve a dispute related to an affected institution that has had an award levied against it in the previous five years.