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


Office of House Bill AnalysisH.B. 3452
By: Hilderbran
Civil Practices
6/21/1999
Enrolled



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. 

H.B. 3452 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. 

In addition, this bill 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.  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. Adds 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. 

(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 dispute related to an affected institution that has had an award levied
against it in the previous five years. 

(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.