By Holly Hayes
As discussed in my previous post, Texas House Bill 2256 was signed into law on June 19, 2009. The bill provides a procedure for mediation of “balance billing,” which is the practice of billing insured patients for amounts or balances not covered by the insurer. HB 2256 also includes the following section on “bad faith” mediation:
SUBCHAPTER C. BAD FAITH MEDIATION
Sec. 1467.101. BAD FAITH.
(a) The following conduct constitutes bad faith mediation for purposes of this chapter:
(1) failing to participate in the mediation;
(2) failing to provide information the mediator believes is necessary to facilitate an agreement; or
(3) failing to designate a representative participating in the mediation with full authority to enter into any mediated agreement.
(b) Failure to reach an agreement is not conclusive proof of bad faith mediation.
(c) A mediator shall report bad faith mediation to the commissioner or the Texas Medical Board, as appropriate, following the conclusion of the mediation.
Sec. 1467.102. PENALTIES.
(a) Bad faith mediation, by a party other than the enrollee, is grounds for imposition of an administrative penalty by the regulatory agency that issued a license or certificate of authority to the party who committed the violation.
(b) Except for good cause shown, on a report of a mediator and appropriate proof of bad faith mediation, the regulatory agency that issued the license or certificate of authority shall impose an administrative penalty.
On a related note, Victoria Pynchon conducted recently an interesting survey about “bad faith” in negotiations. Lawyers, mediators, and clients came up with a list of 35 examples of what they considered “bad faith.” Find the survey results here.
We welcome your comments about this post!
Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.
Tags: H.B. 2256, Mediation, Texas Legislation
Thanks for the mention. I am deeply troubled by the bill you describe for several reasons:
1. it makes the mediator the “cop” of the mediation; hardly a role that will inspire parties to be candid;
2. it gives the mediator almost unlimited power to require the parties to produce “information” which I’m assuming includes documents the parties might object to producing on legal grounds; and,
3. it blows a hole in mediation confidentiality as wide as the sky, permitting the mediator to make a report about conduct he or she considers to constitute bad faith, which would obviously require the mediator to disclose confidences.
I’m curious about the scope of mediation confidentiality in Texas and whether this bill is at odds with those protections. If so, which provision prevails?
Vickie Pynchon
Settle It Now Negotiation Blog
http://negotiationlawblog.com
The “Bad Faith Mediation” provisions of HB 2256 envision a form of “mediation” — with limited confidentiality — at odds with a like-named process created by the Texas Alternative Dispute Resolution Act.
This was not sloppy drafting. This was not the act, or rather the Act, of someone who doesn’t understand that mediation is a confidential process. Confidentiality was expressly limited to permit the mediator to evaluate and report on whether a party failed “to provide information the mediator believes is necessary to facilitate an agreement.”
I am not questioning the good intentions of those who drafted the statute, just their judgment in calling it mediation. The process they describe might be a swell process — it is just not one that a mediator can participate in “as a mediator” and still maintain membership in a professional society having a code of ethics requiring that the mediator maintain confidentiality.
Fortunately, the statutory process can probably be salvaged with amendments. The Legislature can simply substitute the phrase “mandatory negotiation” for the term “mediation” and “negotiation snitch” for “mediator.”
I got dibbs on the title “Association of Negotiation Snitches.”
Michael Curry
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