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Click here for the full text of this decision FACTS:In April of 2003, John D. Lyman was admitted to the Humble Healthcare Center, and his wife Marjorie executed an arbitration agreement with HHC. John died later that month. Marjorie filed a petition in the trial court asserting statutory claims for damages under the Texas Wrongful Death Act and the Texas Survival Statute against HHC. After the trial court denied HHC’s motion to compel arbitration under the TAA, HHC filed a motion to reconsider, relying on evidence that HHC was reimbursed by Medicare for services rendered to John and requesting the court to compel arbitration pursuant to the FAA. The trial court denied HHC’s motion to reconsider, and HHC filed a petition for writ of mandamus in the Fourteenth Court of Appeals, which was denied. HHC filed an interlocutory appeal in the First Court of Appeals pursuant to the TAA and a petition for writ of mandamus in this court pursuant to the FAA. HOLDING:Conditionally granted. The fact that HHC argued only the TAA in its first motion for arbitration and raised new grounds under the FAA in its motion to reconsider does not estop HHC from seeking arbitration. HHC did not evince an intent to waive its arbitration right. Marjorie argues HHC waived its right to compel arbitration by concealing the arbitration agreement in contravention of Article 4590i of the Texas Revised Civil Statutes. However, this article only requires a party to produce medical records (not other documents) upon receipt of a written request by another party. Thus, HHC did not waive its arbitration right. The FAA “extends to any contract affecting commerce, as far as the Commerce Clause of the United States Constitution will reach.” In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125 (Tex. 1999) (per curiam). Because “commerce” is broadly construed, the evidence of Medicare payments made to HHC on John’s behalf is sufficient to establish interstate commerce and the FAA’s application in this case. The factors that determine whether the FAA preempts the TAA are whether 1. the agreement is in writing; 2. it involves interstate commerce; 3. it can withstand scrutiny under traditional contract defenses; and 4. state law affects the enforceability of the agreement. Factors 1. and 3. are undisputed, and, because HHC was reimbursed by the Medicare program for services rendered to John, the arbitration agreement involves interstate commerce, the court states. The TAA interferes with the enforceability of the arbitration agreement by adding an additional requirement-the signature of a party’s counsel-to arbitration agreements in personal injury cases. The arbitration agreement is governed by the FAA, which provides no option of interlocutory appeal; therefore, mandamus is available, and HHC’s interlocutory appeal is immaterial. Because the TAA is preempted by the FAA in this case, the signature of Marjorie’s counsel was not a prerequisite to enforcement of the arbitration agreement. OPINION:Per curiam.

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