85R9317 DMS-F     By: Klick H.B. No. 2116       A BILL TO BE ENTITLED   AN ACT   relating to informal dispute resolutions for violations of health   and safety standards at certain long-term care facilities.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Sections 247.051(a), (c), and (d), Health and   Safety Code, are amended to read as follows:          (a)  The executive commissioner by rule shall establish an   informal dispute resolution process to address disputes between an   assisted living [a] facility and the commission [department]   concerning a statement of violations prepared by the commission    [department] in accordance with this section. The process must   provide for adjudication by an appropriate disinterested person of   disputes relating to a statement of violations. The informal   dispute resolution process must require:                (1)  the assisted living facility to request informal   dispute resolution not later than the 10th day after the date of   notification by the commission [department] of the violation of a   standard or standards;                (2)  that the [commission to complete the] process be   completed not later than the 90th day after the date of receipt of a   request from the assisted living facility for informal dispute   resolution;                (3)  that, not later than the 10th business day after   the date an assisted living facility requests an informal dispute   resolution, the commission [department] forward to the assisted   living facility a copy of all information that is referred to in the   disputed statement of violations or on which a citation is based in   connection with the survey, inspection, investigation, or other   visit, including any notes taken by or e-mails or messages sent by a   commission employee involved with the survey, inspection,   investigation, or other visit and excluding the following   information:                      (A)  the name of any complainant, witness, or   informant, which must be redacted from information provided to the   assisted living facility;                      (B)  any information that would reasonably lead to   the identification of a complainant, witness, or informant, which   must be redacted from information provided to the assisted living   facility;                      (C)  information obtained from or contained in the   records of the facility;                      (D)  information that is publicly available; or                      (E)  information that is confidential by law;                (4)  that [the commission to give] full consideration   is given to all legal and factual arguments raised during the   informal dispute resolution process [that:                      [(A)     are supported by references to specific   information that the facility or department relies on to dispute or   support findings in the statement of violations; and                      [(B)     are provided by the proponent of the   argument to the commission and the opposing party];                (5)  that full consideration is given during the   informal dispute resolution process [staff give full   consideration] to the information provided by the assisted living   facility and the commission [department];                (6)  that ex parte communications concerning the   substance of any argument relating to a survey, inspection,   investigation, visit, or statement of violations under   consideration not occur between the informal dispute resolution   staff and the assisted living facility or the commission    [department]; [and]                (7)  that the assisted living facility and the   commission [department] be given a reasonable opportunity to submit   arguments and information supporting the position of the assisted   living facility or the commission [department] and to respond to   arguments and information presented against them;                (8)  that the commission bears the burden of proving   the violation of a standard or standards; and                (9)  that a witness statement provided by an assisted   living facility be given the same presumption of truth as a witness   statement provided by the commission, including a witness statement   contained in a statement of deficiencies, provided that the   assisted living facility and the commission may challenge the   reliability of any witness statement based on the records presented   during the course of the informal dispute resolution process.          (c)  An assisted living facility requesting an informal   dispute resolution under this section must reimburse the commission    [department] for any costs associated with the commission's    [department's] preparation, copying, and delivery of information   requested by the facility.          (d)  A statement of violations prepared by the commission    [department] following a survey, inspection, investigation, or   visit is confidential pending the outcome of the informal dispute   resolution process.  Information concerning the outcome of a   survey, inspection, investigation, or visit may be posted on any   website maintained by the commission [department] while the dispute   is pending if the posting clearly notes each finding that is in   dispute.          SECTION 2.  Section 531.058, Government Code, is amended by   amending Subsections (a) and (a-1) and adding Subsection (d) to   read as follows:          (a)  The executive commissioner by rule shall establish an   informal dispute resolution process in accordance with this   section. The process must provide for adjudication by an   appropriate disinterested person of disputes relating to a proposed   enforcement action or related proceeding of the commission under   Section 32.021(d), Human Resources Code, or [the Department of   Aging and Disability Services] under Chapter 242, 247, or 252,   Health and Safety Code. The informal dispute resolution process   must require:                (1)  an institution or facility to request informal   dispute resolution not later than the 10th calendar day after   notification by the commission [or department, as applicable,] of   the violation of a standard or standards; and                (2)  the completion of [commission to complete] the   process not later than:                      (A)  the 30th calendar day after receipt of a   request from an institution or facility, other than an assisted   living facility, for informal dispute resolution; or                      (B)  the 90th calendar day after receipt of a   request from an assisted living facility for informal dispute   resolution.          (a-1)  As part of the informal dispute resolution process   established under this section, the commission shall contract with   an appropriate disinterested person [who is a nonprofit   organization] to adjudicate disputes between an institution or   facility licensed under Chapter 242, Health and Safety Code, or a   facility licensed under Chapter 247, Health and Safety Code, and   the commission [Department of Aging and Disability Services]   concerning a statement of violations prepared by the commission    [department] in connection with a survey conducted by the   commission [department] of the institution or facility.  Section   2009.053 does not apply to the selection of an appropriate   disinterested person under this subsection.  The person with whom   the commission contracts shall adjudicate all disputes described by   this subsection.          (d)  The rules adopted by the executive commissioner under   Subsection (a) that relate to a dispute described by Section   247.051(a), Health and Safety Code, must incorporate the   requirements of Section 247.051, Health and Safety Code.          SECTION 3.  This Act takes effect September 1, 2017.