1. (a) DADS or any affected facility may elect arbitration as an alternative to a contested case proceeding or to a judicial proceeding relating to the assessment of a civil penalty, pursuant to the Code, Subchapter J, in any of the following disputes, unless the United States Health Care Financing Administration requires that such dispute be resolved by the federal government:

   1. (1) renewal of a license under Code §242.033;
   2. (2) assessment of a civil penalty under Code §242.065;
   3. (3) assessment of a monetary penalty under Code §242.066; or
   4. (4) assessment of a penalty as described by Tex. Hum. Res. Code Ann., §32.021(n).

2. (b) Arbitration may not be elected in the following circumstances if the subject matter of the dispute is part of the basis for:

   1. (1) revocation, denial, or suspension of an institution's license pursuant to Code §242.061;
   2. (2) issuance of an emergency suspension or closing order under Code §242.062;
   3. (3) suspension of admissions under Code §242.072; or
   4. (4) appointment of a trustee under Code §242.094 to resolve the legal issues involving the appointment of a trustee or conduct with respect to which the appointment of a trustee is sought.

3. (c) Arbitration may not be elected if the facility has had an arbitration order levied against it in the previous five years and the currently alleged violations occurred on or after September 1, 1999.

   1. (1) The five year period begins on the date the arbitration order becomes final and ends on the fifth anniversary of the date upon which the arbitration order became final.
   2. (2) This restriction does not apply to facilities that were parties in arbitrations that were resolved by settlement or dismissal before an order was issued.
4. (d) The election of arbitration is a representation that the party choosing arbitration is solvent and able to bear the costs of the proceeding. In cases where the facility is responsible for paying SOAH's costs and expenses, SOAH will require that an authorized representative of the facility provide an affidavit acknowledging the facility's responsibility and duty to pay SOAH's costs and expenses.
5. (e) An election to engage in arbitration under this chapter is irrevocable and binding on the facility and DADS. However, such an election does not preclude the parties from reaching an agreed resolution of a dispute that has been submitted for arbitration at any time during the arbitration process before the final order has been issued by the arbitrator.

Source Note:The provisions of this §163.3 adopted to be effective January 1, 1996, 20 TexReg 10757; amended to be effective October 29, 1998, 23 TexReg 10867; amended to be effective November 17, 2005, 30 TexReg 7429.