Part II.
Texas Rehabilitation Commission
Chapter 104.
Informal Appeals, Formal Appeals, and Mediation
by Applicants/Clients of Determinations by Agency Personnel that Affect the
Provision of Vocational Rehabilitation Services
[
40 TAC §§104.1-104.8
The Texas Rehabilitation Commission (TRC) proposes amendments
to §§104.1-104.8, concerning informal appeals, formal appeals, and
mediation by applicants/clients of determinations by agency personnel that
affect the provision of vocational rehabilitation services.
The sections are being amended to conform the rules to the 1998 amendments
to the Rehabilitation Act of 1973, 29 U.S.C. §§701 et. seq.
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the sections are in effect,
there will be no fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be conformity to the 1998 amendments to the Rehabilitation
Act of 1973, 29 U.S.C. §§701 et seq. There will be no effect on
small businesses. There is no anticipated economic cost to persons who are
required to comply with the sections as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
The amendments are proposed under the Texas Human Resources Code,
Title 7, Chapter 111, §111.018 and §111.023, which provides the
Texas Rehabilitation Commission with the authority to promulgate rules consistent
with Title 7, Texas Human Resources Code.
No other statute, article, or code is affected by this proposal.
§104.1. Purpose and Scope.
(a)
Purpose. The purpose of these rules is to provide the
Texas Rehabilitation Commission with a system for the institution, conduct,
and determination of "informal" and "formal appeals"
and "mediation"
as those terms are defined herein. These rules shall be liberally construed
in accordance with the purpose for which they were adopted. These rules inform
all applicants and persons served by TRC of their due process right to appeal
when they are dissatisfied with any determination made by a rehabilitation
counselor or agency official regarding the furnishing or denial of services.
(b)
Statutory Authority. These rules are created pursuant
to the Rehabilitation Act of 1973, as amended, 29 United States Code Annotated
(USCA) §§701 et seq. and Department of Education Regulations at
34 Code of Federal Regulations (CFR),
Part 361
[
(c)
Scope.
(1)
This chapter applies to client (applicant)
appeals,
mediations, and hearings
[
(2)
These rules shall be construed to insure fair and
expeditious determinations.
(3)
These rules supplement the procedures required by
law.
§104.2. Definitions.
The following words and terms, when used in this section, shall have
the following meaning, unless the context clearly indicates otherwise.
(1)
Act--The Rehabilitation Act of 1973 as amended,
29 United States Code §701 et seq.
(2)
Appellant--An individual who has filed
a petition for administrative hearing.
(3)
Applicant--An individual who has applied
for services under the Act, but for whom an eligibility determination has
not been made. [
(4)
Authorized representative--An attorney
authorized to practice law in the State of Texas and/or a person designated
by the applicant or client to represent them.
(5)
Client--An individual who has been determined
to be eligible for services by the commission pursuant to the Act and commission
rules. As used in these rules, unless specifically denoted, the terms "client"
and "applicant" are synonymous.
(6)
Client Assistance Program (CAP)--The program
created by the Act which provides assistance in informing and advising clients
and applicants of all available benefits under the Act. CAP provides assistance
and advocacy in pursuing legal, administrative, or other appropriate remedies
to ensure protection of the client's rights under the Act if requested by
the client or the client's authorized representative.
(7)
Commission--The Texas Rehabilitation Commission
(TRC), its officers and agents.
[
(8)
Commissioner
[
[
(9)
Formal appeal--The timely filing of a
Petition for Administrative Hearing due to a client's continued dissatisfaction
with a decision of the Commission regarding the furnishing or denial of services.
(10)
Hearing--A due process formal appeal
conducted under these rules by an impartial hearing officer regarding allegations
set forth in the client's Petition for Administrative Hearing regarding the
furnishing or denial of services. This term includes prehearing conferences.
(11)
Hearing completion date--The date set
by the impartial hearing officer which closes the period during which the
parties may submit further evidence into the record or the date the impartial
hearing officer receives the hearing transcript, whichever is later.
(12)
Impartial hearing officer (IHO)--Individual
who is selected on a random basis and is appointed by the commissioner to
hear a formal appeal pursuant to these rules. The IHO is selected from a pool
of qualified persons identified jointly by TRC and by members of the
Rehabilitation Council of Texas
[
(13)
Informal appeal or review--A communication
or series of communications between a client and a Commission official which
seeks to resolve the client's dissatisfaction with any determination made
by a vocational rehabilitation counselor or commission official concerning
the furnishing or denial of services.
(14)
Mediation--A voluntary
process by which applicants and eligible individuals who have requested appeals
may attempt resolution of disputes with TRC involving determinations affecting
the provision of vocational rehabilitation services through the use of a trained
mediator.
(15)
Office for Administrative
Hearings and Subrogation--An office of the Texas Rehabilitation Commission
which provides, among other functions, administrative support to the impartial
hearing officer during the formal appeal process and is the point of contact
for client's questions about the administrative hearings process.
(16)
Party--An individual or agency named
or admitted to participate in a formal appeal before the commission.
(17)
Record--The official record of a formal
appeal includes all of the following: pleadings; motions; intermediate rulings;
orders; evidence received or considered; statements of matters officially
noticed; questions and offers of proof; objections and rulings on objections;
the IHO decision; any other decision, opinion, or report by the IHO [
(18)
Regional program director--Person who
reviews applicant and client appeals at the TRC Regional Office level. The
person holding this position in each region is also referred to as the operations
director for programs.
(19)
Respondent--The Texas Rehabilitation
Commission (TRC).
(20)
Rule--Any written commission statement
of general applicability that implements, interprets, or prescribes law or
policy or describes the procedure or practice requirements of the commission.
The term includes the amendment or repeal of a prior rule, but does not include
statements concerning only the internal management or organization of the
commission and not affecting private rights or procedures. The term does not
include certain proceedings excluded by the Act.
(21)
Standard of review--
The criteria
for a court to remand or overturn a final decision of the Commission. In any
such action the court will receive the records relating to the hearing, will
hear additional evidence at the request of a party to the action; and basing
the decision of the court on the preponderance of the evidence, will grant
such relief as the court determines to be appropriate.
[
(22)
State plan--The commission is required
by the Act to submit to the Department of Education a state plan covering
a three-year period which describes the state's vocational rehabilitation
and independent living programs and the plans and policies to be followed
in carrying out those programs.
(23)
Rehabilitation Council of Texas
[
§104.3. General Provisions.
(a)
General. The formal appeal
and mediation process commences with the filing of a Petition for Administrative
Hearing with the Office for Administrative Hearings and Subrogation. Appeals
of determinations made by personnel of the commission that affect the provision
of vocational rehabilitation services to applicants or eligible individuals
may be made concerning:
(1)
applicants for vocational
rehabilitation services; and
(2)
clients.
(b)
[
(1)
The Impartial Hearing Officer acquires jurisdiction over
a case after a client files a Petition for Administrative Hearing and the
IHO is appointed pursuant to these rules.
(2)
A Petition for Administrative Hearing shall be considered
filed on the date the Petition is received and date-stamped by the [
(3)
The IHO's authority is limited to a review of a client's
dissatisfaction with the furnishing or denial of services by
personnel
of the Commission
[
(A)
change or alter [
(B)
hear alleged violations of the Americans with Disabilities
Act, §504 of the Act, or other federal laws; or
(C)
hear or decide class actions.
(c)
[
(d)
[
(1)
Unless otherwise required by law in computing any period
of time prescribed or allowed by these rules, the date of the act, event,
or default after which the designated period of time begins to run is not
to be included. The last day of the period so computed is to be included,
unless such day is a Saturday, Sunday, or legal holiday, in which event the
period runs until the end of the next day which is neither a Saturday, Sunday,
nor legal holiday. Unless specifically stated otherwise, "days" as used in
these policies refer to calendar days.
(2)
Unless otherwise provided by statute, the time for
filing any pleading may be extended by order of the IHO at the request of
any party upon written motion duly filed with the [
(3)
The date upon which a pleading or motion is filed
is the date on which it is received and date-stamped by the [
[
Unless specifically
stated otherwise, "days" as used in these rules means calendar days. ]
(e)
[
[
Notice of right to formal
appeal.]
[
Subject to the provisions of 34 Code of Federal
Regulation §361.48, the commission is responsible for providing notice
to all parties as required therein and by other applicable law.]
(f)
Notification.
(1)
An applicant or an eligible
individual or, as appropriate, the applicant's representative or individual's
representative, shall be notified of the right to obtain review of determinations
described in subsection (a) of this section in an impartial due process hearing
under subsection (h) of this section, and of the right to pursue mediation
with respect to the determinations under §104.5(c) of this title (relating
to Formal Appeal and Mediation), and of the availability of assistance from
the client assistance program. Such notification shall be provided in writing
at the time an individual applies for vocational rehabilitation services,
and at the time the individualized plan for employment for the individual
is developed, and upon reduction, suspension, or cessation of vocational rehabilitation
services for the individual.
(2)
The IHO shall issue notice of the date, time, and
location for the hearing.
(g)
Evidence and representation.
An applicant or an eligible individual, or, as appropriate, the applicant's
representative or individual's representative, will be provided with an opportunity
to submit at the mediation session or hearing evidence and information to
support the position of the applicant or eligible individual, and may be represented
in the mediation session or hearing by a person selected by the applicant
or eligible individual.
(h)
Hearings.
(1)
Hearing officer. A due process hearing shall
be conducted by an impartial hearing officer who shall issue a decision based
on the provisions of the approved state plan, the Rehabilitation Act if 1973,
as amended (including regulations implementing the Act), and state regulations
and policies that are consistent with the Rehabilitation Act and its implementing
regulations. The impartial hearing officer shall provide the decision in writing
to the applicant or eligible individual, or, as appropriate, the applicant's
representative or individual's representative, and to the commission.
(2)
List. The commission will maintain a list
of qualified impartial hearing officers who are knowledgeable in laws (including
regulations) relating to the provision of vocational rehabilitation services
under the Rehabilitation Act of 1973, as amended, from which hearing officers
will be selected. For the purposes of maintaining such list, impartial hearing
officers shall be identified jointly by the Commission, and by members of
the Rehabilitation Council of Texas.
(3)
Selection. An impartial hearing officer
shall be selected to hear a particular case relating to a determination on
a random basis.
(i)
[
(j)
[
(k)
[
(l)
[
(m)
[
(n)
[
(o)
[
(1)
An individual who is not an employee of TRC and who is
subpoenaed or otherwise compelled to attend any hearing or proceeding to give
testimony or to produce documents is entitled to receive:
(A)
mileage, in the same amount per mile as the mileage travel
allowance for state employees, for traveling to and returning from the place
of the hearing or the place where the deposition is taken, if the place is
more than 25 miles from the individual's place of residence; and
(B)
a fee of not less than $10 a day for each day or part
of a day the individual is required to be present or a fee equal to the per
diem and travel allowances of a state employee, if an overnight stay is required.
(2)
Mileage and fees to which a witness is entitled
under this rule shall be paid by the party at whose request the individual
appears or at whose request the deposition is taken.
[
Continuation of services.
Pursuant to the Act, pending a final decision by the IHO or the resolution
of an informal or formal appeal, the commission shall not institute a suspension,
reduction, or termination of services being provided under the individualized
written rehabilitation program (IWRP), unless such services have been obtained
through misrepresentation, fraud, collusion, or criminal conduct on the part
of the client. In the case of a client who has completed a term of training
or similar services prior to the appeal, and the next term has not yet begun
(prior to the current appeal), it is understood that such training or services
are not "being provided."]
(p)
Impact on provision of services.
Unless the individual with a disability so requests, or, in an appropriate
case, the individual's representative so requests, pending a decision by a
mediator or impartial hearing officer under subsection (h)(1) of this section
or §104.6 of this title (relating to Motion for Reconsideration), the
commission will not institute a suspension, reduction, or termination of services
being provided for the individual, including evaluation and assessment services
and plan development, unless such services have been obtained through misrepresentation,
fraud, collusion, or criminal conduct on the part of the individual, or the
individual's representative. In the case of a client who has completed a term
of training or similar services prior to the appeal, and the next term has
not yet begun (prior to the current appeal), it is understood that such training
or services are not "being provided."
§104.4. Informal Appeal.
(a)
A client or applicant may
seek an informal appeal of his/her dissatisfaction with a decision. An informal
appeal consists of meetings, properly documented, with the VRC, area manager,
and the regional program director, in that order.
(b)
During the informal appeal
process, the Commission shall maintain a file of all documentation, decisions,
and actions throughout the process. The parties shall jointly agree on dates,
times, and locations of meetings.
(c)
An informal appeal may not
be used as a means to delay a formal hearing or mediation.
(d)
A client/applicant may file
a petition for a formal administrative hearing at any time during the informal
appeals process.
[
A client may seek a timely
review of his/her dissatisfaction with a decision by the rehabilitation counselor,
the area manager, and the regional program director, in that order.]
[
An informal appeal may not
be used as a means to delay a formal appeal before an impartial hearing officer
unless the parties jointly agree to a delay. The rehabilitation counselor
shall immediately inform the client of his/her right to petition for a formal
appeal in lieu of initiating the informal appeal process. During the informal
appeal process, the commission shall maintain a file of all documentation,
decisions, and actions throughout the process. The parties shall jointly agree
on the applicable dates, times, and locations for the meetings.]
§104.5. Formal Appeal and Mediation .
(a)
The formal appeal process commences with the filing of
a Petition for Administrative Hearing with the [
(b)
Role of [
(1)
acknowledge receipt of the petition for administrative
hearing (via certified mail, return receipt requested) and advise the appellant
of the availability of the Client Assistance Program, including the address
and telephone number [
(2)
date-stamp the Petition and record a docket control
number for the appeal;
(3)
select the impartial hearings officer (IHO), who
is appointed by the commissioner, on a random basis from a pool of qualified
persons identified jointly by TRC and the
Rehabilitation Council of Texas
[
(4)
forward a copy of the Petition for Administrative
Hearing to the Office of the General Counsel, Deputy Commissioner for Rehabilitation
Services and Commission Representative immediately upon receipt;
(5)
provide administrative support to the IHO:
(A)
serve as the custodian of records for all documents, motions,
and pleadings directed to the IHO;
(B)
coordinate and schedule all dates, meetings, hearings;
(C)
make all necessary arrangements for the formal appeal:
(i)
schedule and set up the hearing location;
(ii)
if required,
retain the services of a certified
shorthand reporter to prepare a transcript of the proceedings;
(iii)
provide any requested reasonable accommodations;
(6)
compile and maintain the official record
of the appeal;
(7)
accompany IHO to prehearing conference, administrative
hearing and provide necessary assistance during the proceedings;
[
send copies of witness
lists to all parties to the hearing and to witnesses who are TRC employees.]
(c)
Mediation. Applicants and
eligible individuals who have requested appeals may agree with the Commission
to attempt resolution of disputes involving determinations described in §104.3(a)
of this title (relating to General Provisions) through mediation. The mediation
process must be voluntary on the part of the parties. It may not be used to
deny or delay the right of an individual to a hearing under §104.3(h)
of this title, or to deny any other right afforded by law, and it will be
conducted by a qualified and impartial mediator who is trained in effective
mediation techniques. The Commission will bear the cost of the mediation process.
Clients/Applicants are responsible for the cost of any attorney or other person
representing him/her.
(1)
List of mediators. The Commission will maintain
a list of individuals who are qualified mediators and knowledgeable in laws
(including regulations) relating to the provision of vocational rehabilitation
services under the Rehabilitation Act of 1973, as amended, from which mediators
will be selected.
(2)
Scheduling. Each session in the mediation
process shall be scheduled in a timely manner and shall be held in a location
that is convenient to the parties to the dispute.
(3)
Agreement. An agreement reached by the
parties to the dispute in the mediation process shall be set forth in a written
mediation agreement and signed by both parties or their representatives, and
the mediator.
(4)
Confidentiality. Discussions that occur
during the mediation process shall be confidential and may not be used as
evidence in any subsequent due process hearing or civil proceeding. The parties
to the mediation process may be required to sign a confidentiality pledge
prior to the commencement of such process.
(d)
[
(1)
Qualifications. The IHO:
(A)
cannot be an employee of a public agency;
(B)
cannot be a member of the
Rehabilitation Council
of Texas
[
(C)
must have knowledge of the delivery of vocational rehabilitation
services, the state plan under the Act, §101, the federal regulations,
and commission rules governing the provision of such services and training
with respect to the performance of official duties;
(D)
must not have been involved in previous decisions regarding
the vocational rehabilitation
of the
applicant or client;
(E)
must have no personal or financial interest that would
conflict with his/her objectivity; [
(F)
must have [
(G)
must not be a client of TRC.
(2)
Powers and Duties.
(A)
The IHO shall have the authority and duty to:
(i)
conduct a full, fair, and impartial hearing;
(ii)
take action to avoid unnecessary delay in the disposition
of the proceeding;
(iii)
maintain order; and
(iv)
permit deviations from the rules and procedures prescribed
in subsections
(f)
[
(B)
The IHO shall have the power to regulate the course of
the hearing and the conduct of the parties and authorized representative(s),
including the power to:
(i)
administer oaths;
(ii)
take testimony;
(iii)
rule on questions of evidence;
(iv)
rule on discovery issues;
(v)
issue orders relating to hearing and prehearing matters,
including orders granting permission to subpoena witnesses and imposing sanctions
regarding discovery;
(vi)
limit irrelevant, immaterial, and unduly repetitious
testimony and reasonably limit the time for presentations;
(vii)
admit or deny party status;
(viii)
grant continuance(s);
(ix)
require parties to submit legal memoranda, proposed findings
of fact, and conclusions of law;
(x)
make findings of fact and conclusions of law; and
(xi)
issue decisions.
(C)
An IHO shall disqualify him/herself if the IHO has directly
or indirectly had prior involvement with any issues that are the basis for
the hearing
, or if the IHO has a personal relationship or familial relationship
with any party or witness
.
(D)
Substitution of impartial hearing officers.
(i)
If for any reason an IHO is unable to continue presiding
over a pending hearing or issue a decision after the conclusion of the hearing,
another IHO may be designated as a substitute in accordance with applicable
law and these rules.
(ii)
The substitute IHO may use the existing record and need
not repeat previous proceedings, but may conduct further proceedings as necessary
and proper to conclude the hearing and render a decision.
(e)
[
(f)
[
(1)
Prehearing Conference(s).
(A)
When appropriate, the IHO may hold a prehearing conference
to resolve matters preliminary to the hearing.
(B)
A prehearing conference may be convened to address preliminary
matters including the following
listed in clauses (i)-(xv) of this subparagraph
:
(i)
issuance of subpoenas;
(ii)
factual and legal issues;
(iii)
stipulations;
(iv)
clarification of the issues at the discretion of the
IHO;
(v)
requests for official notice;
(vi)
identification and exchange of documentary evidence;
(vii)
admissibility of evidence;
(viii)
identification and qualification of witnesses;
(ix)
motions;
(x)
discovery disputes;
(xi)
order of presentation;
(xii)
scheduling;
(xiii)
settlement conferences; [
(xiv)
mediation; and
(xv)
[
(C)
Among other matters, as stated in subsection (b) of this
section, an IHO may order:
(i)
that the parties jointly discuss the prospects of settlement
or stipulations or other dispute resolution methods approved herein and be
prepared to report thereon at the prehearing conference;
(ii)
that the parties file and be prepared to argue preliminary
motions at the prehearing conference;
(iii)
that the parties be prepared to specify the controlling
factual and legal issues in the case at the prehearing conference; and
(iv)
that the parties make a concise statement of undisputed
facts and issues at the prehearing conference.
(D)
All or part of the prehearing conference
may
[
(E)
The IHO may, after acquiring jurisdiction, issue an order
requiring a prehearing "statement of the case." The parties shall [
(i)
the disputed issues or matters to be resolved;
(ii)
a brief statement of the facts or arguments supporting
the party's position in each disputed issue or matter;
(iii)
a list of facts or exhibits to which a party will stipulate;
and
(iv)
a list of the witnesses which each party intends to call
at the hearing, including a designation of each as either a fact or expert
witness, and a brief statement summarizing the testimony and/or opinions (experts)
of each witness
.
[
[
a description of the discovery,
if any, the party intends to engage in and an estimate of the time needed
to complete discovery.]
(2)
Prehearing Orders.
(A)
The IHO may issue a prehearing order reciting the actions
taken or to be taken with regard to any matter addressed at the prehearing
conference.
(B)
The prehearing order shall be a part of the hearing record.
(C)
If a prehearing conference is not held, the IHO may issue
a prehearing order to regulate the conduct of the proceedings of the formal
hearing.
[
Settlement Conferences.]
[
Upon request of any party and approval by
the IHO, or at the IHO's discretion, a conference outside the presence of
the IHO may be held to address settlement.]
[
Settlement discussions shall not be made a
part of the case record.]
[
This section is not in derogation of the agency's
and the parties' ability to settle cases independently of the impartial hearing
officer.]
(3)
[
(A)
The parties, by stipulation, may agree to any substantive
or procedural matter.
(B)
A stipulation shall be filed in writing or entered on
the record at the prehearing (or hearing).
(C)
The IHO may require additional development of stipulated
matters.
(g)
[
(1)
In a formal appeal all pleadings, including the Petition
for Administrative Hearing, shall contain:
(A)
the name of the party making the pleading;
(B)
the names of all other known parties;
(C)
a concise statement of the facts alleged and relied upon;
(D)
a statement of the type of relief, action, or order desired;
(E)
any other matter required by law;
(F)
a certificate of service, as required by these rules;
and
(G)
the signature of the party making the pleading or the
party's authorized representative.
(2)
Any pleading filed pursuant to a formal appeal
may be amended up to 14 days prior to the hearing. Amendments filed after
that time will be accepted at the discretion of the IHO.
(3)
Any pleading may adopt and incorporate, by specific
reference thereto, any part of any document or entry in the official files
and records of the Commission. All pleadings relating to any matter pending
before the Commission shall be filed with the IHO through the [
(4)
All pleadings shall be typed or printed on 8 1/2
by 11 inch paper with a one-inch margin. Reproductions are acceptable, provided
all copies are clear and permanently legible.
(5)
Pleadings shall contain the name, address, and telephone
number of the party filing the document or the name, telephone number, and
business address of the authorized representative.
(6)
The party or the party's designated representative
filing the pleading shall include a signed certification that a true and correct
copy of the pleading has been served on every other party.
[
Discovery.]
[
Forms and scope of discovery.]
[
Discovery is the process by which a party
may, prior to the hearing, obtain evidence which is relevant to the subject
matter of the hearing.]
[
The parties are entitled to conduct the following
forms of discovery:]
[
oral or written depositions of any party or
non-party;]
[
requests for admission;]
[
interrogatories; and]
[
requests for production or examination.]
[
Scope of discovery. Parties may obtain discovery
regarding any matter which is relevant to the subject matter of the hearing
or which is reasonably calculated to lead to the discovery of evidence which
would be admissible at the hearing.]
[
All discovery requests should be directed
to the party from which discovery is being sought.]
[
Copies of discovery requests and documents
filed in response thereto shall be served on all parties and should not be
filed with the IHO unless directed by the IHO to do so or when in support
of objections, motions to compel, motions for protective orders, or motions
to quash.]
[
All parties will be afforded a reasonable
opportunity to file objections and motions to compel with the IHO regarding
any and all discovery requests.]
[
Depositions.]
[
After the filing of a Petition for Administrative
Hearing (TRC-505) any party may take the testimony of any person, including
a party, upon oral or written examination.]
[
Reasonable notice must be served in writing
by the party or the party's authorized representative proposing to take a
deposition upon oral examination to every other party or the party's authorized
representative. The notice shall state the name of the deponent, the time
and the place of the taking of the deposition, and if the production of documents
or tangible things is desired, a designation of the items to be produced by
the deponent which describes each item with reasonable particularity. The
notice shall also state the identity of persons who will attend other than
the witness, parties, authorized representatives and their employees, and
the officer taking the deposition. If any party intends to have any other
persons attend, that party must give reasonable notice to all parties of the
identity of such other persons.]
[
When the deponent is a party, notice proposing
to take a deposition served upon the party or the party's authorized representative
shall have the same effect as a subpoena served on the party. If the deponent
is an agent or employee who is subject to the control of a party, notice which
is served upon the party or the party's authorized representative shall have
the same effect as a subpoena served on the deponent. A party or a party's
agents, employees, or persons subject to that party's control may be compelled
to produce designated documents or tangible things if the notice sets forth
the individual items or categories of items to be produced with reasonable
particularity.]
[
After the filing of a petition for administrative
hearing (TRC-505), any party may take the testimony of any person, including
a party, by deposition upon written questions. A party proposing to take depositions
upon written questions shall serve them upon every other party or the party's
authorized representative with written notice 10 days before the deposition
is to be taken. The notice shall state the name and address of the deponent,
the hearing in which the deposition is to be used, the name or descriptive
title and address of the officer before whom the deposition is to be taken,
and if the production of documents or tangible things is desired, a designation
of the items to be produced by the deponent which describes each item with
reasonable particularity.]
[
Any party may subpoena an individual who is
not a party in order to take the testimony of that person upon oral or written
examination. The procedure for issuance of subpoenas is set out at paragraph
(6) of this subsection.]
[
Upon proof of service of a notice to take
a deposition, written or oral, any officer authorized to take depositions
and any certified shorthand reporter shall immediately issue and cause to
be served upon the witness a subpoena directing him to appear before the officer
at the time and place stated in the notice for the purpose of giving a deposition.]
[
A witness may be compelled by subpoena duces
tecum to produce books, papers, documents, or tangible things within his care,
custody or control. The subpoena duces tecum shall direct with particularity
the witness to produce, at such time and place designated, documents or tangible
things which constitute or contain evidence or information relating to any
of the matters within the scope of the hearing.]
[
Requests for Admission.]
[
At any time after filing of the petition for
administrative hearing, a party may serve upon any other party a written request
for the admission, for purposes of the pending hearing only, of the truth
of any matters within the scope of these rules set forth in the request that
relate to statements or opinions of fact or of the application of law to fact,
including the genuineness of any documents described in the request.]
[
Copies of documents shall be served with the
request unless they have been or are otherwise furnished or made available
for inspection and copying. Whenever a party is represented by an authorized
representative, service of a request for admissions shall be made on the party's
representative. A true copy of a request for admission or of a written answer
or objection, together with proof of the service thereof, shall be filed promptly
with the Commissioner's Office for Administrative Hearings.]
[
Each matter to which an admission is requested
shall be separately set forth. The matter is admitted without necessity of
an order unless, within 30 days after service of the request, or within such
time as the IHO may allow, or as otherwise agreed by the parties, the party
to whom the request is directed serves upon the party requesting the admission
a written answer or objection addressed to the matter, signed by the party
or the party's representative. If objection is made, the reason therefor shall
be stated.]
[
The answer shall specifically deny the matter
or set forth in detail the reasons that the answering party cannot truthfully
admit or deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify his
answer or deny only a part of the matter of which an admission is requested,
he shall specify so much of it as is true and qualify or deny the remainder.
An answering party may not give lack of information or knowledge as a reason
for failure to admit or deny unless he states that he has made reasonable
inquiry and that the information known or easily obtainable by him is insufficient
to enable him to admit or deny.]
[
The IHO may permit withdrawal or amendment
of responses and deemed admissions upon a showing of good cause for such withdrawal
or amendment if the IHO finds that the parties relying upon the responses
and deemed admissions will not be unduly prejudiced and that the presentation
of the merits of the action will be subserved thereby. Any admission made
by a party under this rule is for the purpose of the pending action only and
neither constitutes an admission by the party for any other purpose nor may
be used against that party in any other proceeding.]
[
Interrogatories.]
[
Any party may serve upon any other party written
interrogatories to be answered by the party served, or the party's authorized
representative.]
[
When a party has designated an authorized
representative, service of interrogatories and answers to interrogatories
shall be made on the representative.]
[
Interrogatories may relate to any matters
which are relevant to the subject matter of the hearing, but the answers,
subject to any objections as to relevance, may be used only against the party
answering the interrogatories.]
[
The party upon whom the interrogatories have
been served shall serve answers on the party submitting the interrogatories
within the time specified by the party serving the interrogatories, which
specified time shall not be less than 30 days after the service of the interrogatories.
The IHO, on motion and notice for good cause shown, may enlarge or shorten
the time for serving answers or objections.]
[
The number of questions including subsections
in a set of interrogatories shall be limited so as not to require more than
30 answers. No more than two sets of interrogatories may be served by a party
to any other party except by agreement or as permitted by the IHO.]
[
Requests for production or examination.]
[
Any party may serve on any other party a request
to produce and permit the requesting party or the party's authorized representative
to inspect or copy any designated documents which are relevant to the subject
matter of the hearing and which are in the possession, custody, or control
of the party to whom the request is directed.]
[
The request shall set forth the items to be
inspected either by individual item or by category, and describe each item
and category with reasonable particularity. The request shall specify a reasonable
time, place, and manner for making the inspection and performing the related
acts.]
[
The party upon whom the request is served
shall serve a written response which shall state, with respect to each item
or category of items, that inspection or other requested action will be permitted
as requested, and he shall thereafter comply with the request, except only
to the extent that he makes objections in writing to particular items, or
categories of items, stating specific reasons why such discovery should not
be allowed.]
[
A party who produces documents for inspection
shall produce them as they are kept in the usual course of business, or shall
organize and label them to correspond with the categories in the request.]
[
The request shall be served upon every party
to the action. The party upon whom the request is served shall serve a written
response and objections, if any, within 30 days after the service of the request.
The time for making a response may be shortened or lengthened by the IHO upon
a showing of good cause.]
[
Subpoenas.]
[
Any party may subpoena a witness for the purposes
of taking their deposition by oral or written examination or to compel testimony
at the hearing.]
[
A party may not obtain a subpoena without
having petitioned the IHO for an order granting the issuance of a subpoena
upon a showing of good cause as to the need for the subpoena.]
[
Upon a finding that good cause exists for
the issuing of a subpoena, the IHO may enter an order granting the issuance
of a subpoena.]
[
The party seeking the subpoena must then present
the IHO order granting the issuance of a subpoena to a certified shorthand
reporter or any officer authorized to issue subpoenas who shall immediately
issue and cause to be served upon the witness a subpoena directing him to
appear at the time and place stated in the order.]
[
All costs associated with the issuing of a
subpoena are to be borne by the requesting party.]
[
The form of the subpoena and the service thereof
shall be in conformance with the rules applicable to subpoenas in Texas Courts.]
[
If the witness fails to comply with the subpoena,
the party requesting the subpoena may bring suit to enforce the subpoena in
a district court either in Travis County or in the county in which the subject
hearing will be held.]
[
Compelling Discovery.]
[
In the event of a discovery dispute, a party,
upon reasonable notice to all other parties, may file a motion to compel or
file a motion for protective order with the IHO. Such motions shall contain
a sworn certificate by the party filing the motion that efforts to resolve
the discovery dispute without the necessity of IHO intervention were attempted
and failed.]
[
At the IHO's discretion, an order compelling
discovery or a protective order may be issued to protect the movant from undue
burden, unnecessary expense, harassment or annoyance, or invasion of personal,
constitutional, or property rights. The IHO's authority extends to but is
not limited by any of the following:]
[
ordering that requested discovery be answered
or produced;]
[
ordering that the requested discovery not
be sought in whole or in part, that the extent or subject matter of discovery
be limited, or that it not be undertaken at the time or place specified;]
[
ordering that the discovery be undertaken
only by such method, upon such terms and conditions, or at the time and place
directed by the IHO; and]
[
ordering that, for good cause shown, results
of discovery be sealed or otherwise adequately protected, that its distribution
be limited, or that its disclosure be restricted.]
[
Sanctions.]
[
When a party does not comply with the IHO
order compelling discovery, the requesting party may, upon reasonable notice
to all other parties, apply to the IHO for sanctions. A party may not request
sanctions without having first obtained an order compelling discovery.]
[
If a party, or an officer, director, or an
authorized representative of a party, fails to comply with an order compelling
discovery, the IHO may, after opportunity for hearing, make orders in response
to such failure, including any of the following:]
[
preventing the disobedient party from further
discovery of any kind, or of a particular kind;]
[
deeming any facts pertaining to the order,
or any other facts, to be established, as claimed by the moving party;]
[
disallowing the disobedient party from supporting
or opposing designated claims or defenses, or prohibiting the party from introducing
designated matters into evidence; and]
[
striking pleadings or parts of pleadings,
staying further action until the order is obeyed, or dismissing the proceeding
with or without prejudice.]
[
The IHO may impose any of the sanctions
listed above on a party who abuses the discovery process in seeking or resisting
discovery or who files a request, response, or answer that is frivolous, oppressive,
or made for the purpose of delay.]
[
A party who fails to respond to or fails
to supplement a response to a discovery request may not present evidence that
the party was under a duty to provide in a response or supplemental response,
and may not offer the testimony of an expert witness or of any other person
having knowledge of the discoverable matter, unless the IHO finds good cause
to permit the evidence despite the noncompliance. The burden of establishing
good cause is upon the party offering the evidence, and good cause must be
shown in the record.]
[
Unless permitted by law, party representatives
shall not communicate with the IHO or the commissioner without the knowledge
of all other parties. (The IHO may impose sanctions for impermissible communications.)]
[
The IHO shall state the specific basis for
any sanction in the record or in a written order. A sanctioned party has the
right to appeal the sanction to the commissioner.]
(h)
Dismissal. After giving notice and hearing, the IHO
may upon the motion of any party or the IHO's own motion, dismiss the appeal
upon showing of any one of the following:
[
[
The IHO may entertain motions
for dismissal without a hearing for the following reasons: ]
(1)
[
(2)
[
(3)
[
(4)
[
(5)
[
(6)
[
(7)
[
[
If the IHO finds that
such motion should be granted the IHO will so order, and the commissioner
may enter a final order of dismissal.]
(i)
Motions.
(1)
Unless otherwise provided by these rules, the following
listed in subparagraphs (A)-(I) of this paragraph
shall apply.
(A)
A party may move for appropriate relief before or during
a hearing.
(B)
A party shall submit all motions in writing or orally
at a hearing.
(C)
Written motions shall:
(i)
be filed no later than 15 days before the date of the
hearing, except where good cause is stated in the motion, the IHO may permit
a written motion subsequent to that time;
(ii)
state concisely the question to be determined;
(iii)
be accompanied by any necessary supporting documentation;
and
(iv)
be served on each party.
(D)
An answer to a written motion shall be filed on the earlier
of:
(i)
seven days after receipt of the motion; or
(ii)
on the date of the hearing.
(E)
On written notice to all parties or with telephone consent
of all parties, the IHO may schedule a conference to consider a written motion.
(F)
The IHO may reserve ruling on a motion until after the
hearing.
(G)
The IHO may issue a written decision or state the decision
on the record.
(H)
If a ruling on a motion is reserved, the ruling shall
be in writing and may be included in the IHO's decision.
(I)
The filing or pendency of a motion does not alter or extend
any time limit otherwise established by these rules.
(2)
Continuance(s) may be granted by the IHO in
accordance with applicable law. Motions for continuances shall be in writing
or stated in the record and shall set forth the specific grounds upon which
the party seeks the continuance.
(3)
Unless made during a prehearing or hearing, a party
seeking a continuance, cancellation of a scheduled proceeding, or extension
of an established deadline must file such motion no later than 10 days before
the date or deadline in question. A motion filed less than 10 days before
the date or deadline in question must contain a certification that the movant
contacted the other party(ies) and whether or not it is opposed by any party(ies).
Further, if a continuance to a certain date is sought, the motion must include
a proposed date or dates and must indicate whether the party(ies) contacted
agree on the proposed new date(s).
(j)
Hearing.
(1)
The IHO shall set the date and time for the hearing. [
(2)
Order of procedure at the hearing.
(A)
The appellant may state briefly the nature of the claim
or defense, what the appellant expects to prove, and the relief sought. Immediately
thereafter, the respondent may make a similar statement, and any other parties
will be afforded similar rights as determined by the IHO. Each party is allowed
10 minutes for such statement.
(B)
Evidence shall then be introduced by the appellant. The
respondent and any other parties shall have the opportunity to cross-examine
each of the appellant's witnesses.
(C)
Cross-examination is not limited solely to matters raised
on direct examination. Parties are entitled to redirect and recross-examination.
(D)
Unless the statement has already been made, the respondent
may briefly state the nature of the claim or defense, what the respondent
expects to prove, and the relief sought.
(E)
Evidence, if any, shall be introduced by the respondent.
The appellant and any other parties shall have the opportunity to cross-examine
each of the respondent's witnesses.
(F)
Any other parties may make statements and introduce evidence.
The appellant and respondent shall have opportunity to cross-examine the other
parties' witnesses.
(G)
The parties may present rebuttal evidence.
(H)
The parties may be allowed closing statements at the discretion
of the IHO.
(I)
The IHO may permit deviations from this order of procedure
in the interest of justice or to expedite the proceedings.
(J)
Parties shall provide four copies of each exhibit offered.
(3)
No evidence shall be admitted which is irrelevant,
immaterial, or unduly repetitious.
(4)
Documentary evidence and official notice.
(A)
Documentary evidence may be received in the form of copies
or excerpts if the original is not readily available. On request, parties
shall be given an opportunity to compare the original and the copy or excerpts.
(B)
When numerous similar documents which are otherwise admissible
are offered into evidence, the IHO may limit the documents received to those
which are typical and representative. The IHO may also require that an abstract
of relevant data from the documents be presented in the form of an exhibit,
provided that all parties of record or their representatives be given the
right to examine the documents from which such abstracts were made.
(C)
The following laws, rules, regulations, and policies
listed in clauses (i)-(vi) of this subparagraph
are officially noticed:
(i)
the Rehabilitation Act of 1973, as amended, 29 United
States Code, §701 et seq.;
(ii)
Department of Education regulations, 34 Code of Federal
Regulations,
Part 361
[
(iii)
Texas Human Resources Code,
Title 7,
§111
et seq.;
(iv)
TRC State Plan for Vocational Rehabilitation Services;
(v)
TRC Rehabilitation Services Manual; and
(vi)
TRC Administrative Policies and Procedures Manual.
[
Prepared testimony. In all
proceedings and after service of copies upon all parties of record at such
time as may be designated by the IHO, the prepared testimony of a witness
upon direct examination, either in narrative or question and answer form,
may be incorporated in the record as if read or received as an exhibit, upon
the witness's being sworn and identifying the same. Such witness shall be
subject to cross-examination and the prepared testimony shall be subject to
a motion to strike in whole or in part.]
(D)
[
(i)
Exhibits shall not exceed 8 1/2 by 11 inches (unless they
are folded to that size). Maps, drawings, and other exhibits which are not
the required size shall be rolled or folded so as not to unduly encumber the
record. Exhibits not conforming to this rule may be excluded.
(ii)
Exhibits shall be limited to facts material and relevant
to the issues involved in a particular proceeding.
(iii)
The original of each exhibit offered shall be tendered
to the court reporter for identification.
(iv)
In the event an exhibit has been identified, objected
to, and excluded, the IHO shall determine whether or not the party offering
the exhibit withdraws the offer, and, if so, permit the return of the exhibit.
If the excluded exhibit is not withdrawn it shall be given an exhibit number
for identification, shall be endorsed by the IHO with a ruling, and shall
be included in the record for the only purpose of preserving the exception.
(E)
[
(5)
Failure to attend hearing and default. If, after
receiving notice of a hearing, a party fails to attend a hearing, the IHO
may proceed in that party's absence and, where appropriate, may issue a decision
against the defaulting party.
(k)
Impartial Hearing Officer Decision.
(1)
Within 30 days of the hearing completion date, the IHO
shall issue an opinion based on the provisions of the approved State plan,
the applicable regulations, and the Act which shall contain separately stated:
(A)
findings of fact;
(B)
conclusions of law; and
(C)
opinion.
(2)
The [
§104.6. Motion for Reconsideration [
Either party to a hearing may file a motion for reconsideration
with the Office for Administrative Hearings and Subrogation within 15 days
after issuance of the decision of the impartial hearing officer. The motion
for reconsideration must specify the matters in the decision of the impartial
hearing officer which the party considers to be erroneous. The impartial hearing
officer shall rule on the motion for reconsideration no later than 10 days
after receipt of the motion. If the motion is granted, the IHO shall issue
a decision upon reconsideration within an additional 15 days. If the impartial
hearing officer fails to rule on the motion for reconsideration within 10
days, the motion is denied as a matter of law.
[
The Commissioner cannot delegate
the responsibility for making any final Commission order to any other officer
or employee of the Commission.]
[
Within 20 days of the mailing
of the IHO's opinion the Commissioner will decide whether or not to formally
review the IHO opinion by studying the opinion and the official case record.
The Commissioner shall notify the appellant in writing of his or her intent
to review within 20 days of the mailing of the IHO opinion.]
[
If the Commissioner fails to provide the required
written notice, the IHO opinion is final.]
[
If the Commissioner decides not to formally
review the IHO's opinion, the opinion of the IHO becomes final. In that case,
the Commissioner will issue an order making the opinion of the IHO final.]
[
If the Commissioner decides to formally
review the IHO's opinion, the Commissioner will issue an order to that effect
and written notice of this order will be sent to the Appellant by certified
mail, return receipt requested.]
[
The parties will then have 15 days in
which to submit any additional relevant evidence. The 15-day period begins
on the date of the order that informs the parties that the Commissioner will
review the opinion of the IHO.]
[
Within 30 days of the mailing of the
Commissioner's order to review the IHO's opinion the Commissioner shall issue
a final order and provide a full report to all parties in writing of the reasons
for the order including findings of fact and conclusions of law separately
stated.]
[
The Commissioner's order
reviewing the IHO's opinion will be based on the following standards of review.]
[
The Commissioner may not overturn or modify
an opinion of an IHO, or part of an opinion that supports the position of
the Appellant unless the Commissioner concludes, based on clear and convincing
evidence, that the opinion of the IHO is clearly erroneous on the basis of
being contrary to federal or state law, including policy.]
[
Review shall include all applicable laws,
rules, regulations, policies, and procedures.]
[
Review may be made on all questions of
law, fact, and written policy and procedure.]
[
The review may result in affirming the
opinion of the IHO in whole or in part or reversing or remanding the case
to the IHO for further proceedings.]
[
The review may result in reversing or
remanding the opinion of the IHO when the record of the hearing or opinion
contains any one or more of the following, and the opinion is found to be:]
[
in violation of constitutional, statutory,
regulatory, or written policy provisions;]
[
in excess of the statutory authority of the
commission;]
[
made upon unlawful procedure;]
[
affected by other error of law, regulation,
or written policy;]
[
not reasonably supported by the evidence;
or]
[
arbitrary, capricious, or characterized by
abuse of or clearly unwarranted exercise of discretion.]
[
When none of the conditions in paragraph
(5) of this subsection are present in the record of the hearing or the opinion,
an order affirming the opinion of the IHO shall be issued.]
Finality of the Decision of the Commission
[
The decision of the impartial hearing officer under §104.6
of this title (relating to Motion for Reconsideration) is the final decision
of the Commission. A decision dismissing the case under §104.3(h)(1)
of this title (relating to General Provisions) or §104.5(j)(5) of this
title (relating to Formal Appeal and Mediation) becomes the final decision
of the Commission if a timely motion for reconsideration is not filed.
[
A motion for rehearing is
prerequisite to a judicial appeal. A motion for rehearing must be filed by
a party within 20 days after the date the party receives notice of the commissioner's
final decision or order.]
[
Replies to a motion for rehearing
must be filed with the commission within 15 days after the date the motion
for rehearing is filed.]
[
Commission action on the
motion for rehearing must be taken within 30 days of receipt of the motion
for rehearing. If agency action is not taken within the 30-day period, the
motion for rehearing is overruled by operation of law 30 days after the date
the motion for rehearing is received by the commission.]
[
The commission may, by written
order, extend the period of time for filing the motions and replies and taking
agency action, except that an extension may not extend the period for commission
action beyond 90 days after the motion for rehearing is received by the commission.]
[
In the event of an extension,
the motion for rehearing is overruled by operation of law on the date fixed
by the order, or in the absence of a fixed date, 90 days after the motion
for rehearing is received by the commission.]
Civil Action/Judicial Review
[
General. Any party aggrieved
by a final decision of an impartial hearing officer may bring a civil action
for review of such decision. The action may be brought in any State court
of competent jurisdiction or in a district court of the United States of competent
jurisdiction without regard to the amount in controversy. In any such action
the court will receive the records relating to the hearing, will hear additional
evidence at the request of a party to the action; and basing the decision
of the court on the preponderance of the evidence, will grant such relief
as the court determines to be appropriate.
(b)
Exhaustion of administrative
remedies, including a Motion for Reconsideration, is a prerequisite to judicial
review.
(c)
A party seeking judicial review
of the final Commission decision shall commence his civil action no later
than 30 days after the date of the final decision.
(d)
Implementation. If a party brings a civil action
to challenge a final decision of a hearing officer under §104.3(h)(1)
of this title (relating to General Provisions) or §104.6 of this title
(relating to Motion for Reconsideration), the final decision involved shall
be implemented pending review by the court. [
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
February 22, 1999.
TRD-9901083
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Earliest possible date of adoption: April 4, 1999
For further information, please call: (512) 424-4050
The Texas Rehabilitation Commission (TRC) proposes the repeal of §106.35
and new §106.35, acquisition of client goods and services.
The section is being repealed and replaced to simplify the process of appeals
by contractors who believe that some adverse action relating to their contract
has been taken by the commission.
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the section is in effect, there
will be no fiscal implications for state or local government.
Mr. Harrison also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the section will be a simplified process of appeals by contractors who believe
that some adverse action relating to their contract has been taken by the
commission. There will be no effect on small businesses. There is no anticipated
economic cost to persons who are required to comply with the section as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite
7300, Austin, Texas 78751.
Subchapter A. Acquisition of Client Goods and Services
Informal and Formal
Appeals by Applicants/Clients of Decisions by a Rehabilitation Counselor or
Agency Official
]
§361.48
]. Federal laws and regulations prevail over state laws and regulations.
The Administrative Procedure Act, Texas Government Code Annotated, §§2001.001
et seq. does not apply to client administrative hearings which are conducted
pursuant to federal law.
appeals and hearings
] before the
Texas Rehabilitation Commission.
As used in these rules, unless specifically denoted,
the terms "client" and "applicant" are synonymous.
]
Commissioner's Office for Administrative Hearings--
An office of the Texas Rehabilitation Commission which provides, among
other functions, administrative support to the impartial hearing officer during
the formal appeal process and is the point of contact for client's questions
about the administrative hearings process.
]
Director
of state unit/commissioner
]--The commissioner of the Texas Rehabilitation
Commission.
Discovery--
The process of gathering
all relevant information necessary to render a fair and unbiased decision.
]
TRAC
].
or Commissioner
]; and all Commission memoranda or data, including client
files, submitted to or considered by the IHO [
or the Commissioner
].
The record is maintained by the [
Commissioner's
] Office for Administrative
Hearings
and Subrogation
.
The criteria
for the Travis County District Court to remand or overturn a final decision
of the Commissioner. The standard of review is by substantial evidence limited
to the administrative record.
]
Texas Rehabilitation Commission Advisory Council (TRAC)
]--The
council created [
by Human Resources Code, Title 7, §111.016
]
in accordance with
United States Code, Title 29, Section 725
[
the federal Rehabilitation Act amendments of 1992, Public Law 102-569
].
(a)
] Jurisdiction.
Commissioner's
] Office for Administrative Hearings
and Subrogation.
a rehabilitation counselor or agency official
]. The IHO does not have authority to:
TRC
] rules, policies, or procedures
of the Commission;
(b)
] Conduct and Decorum. Appropriate
conduct and decorum shall be maintained and enforced by the IHO. Every party,
witness, attorney, or other representative shall participate in all proceedings
with proper dignity, courtesy, and respect for the Commission, the IHO, and
all other parties. Attorneys and other representatives or parties shall observe
and practice a high standard of ethical behavior.
(c)
] Computation of Time.
Commissioner's
]
Office for Administrative Hearings
and Subrogation
prior to the
expiration of the applicable period of time for the filing of same. Said motion
shall include a showing that there is good cause for such extension of time
and that the need therefor is not caused by neglect, indifference, or lack
of diligence of the movant. A copy of any such motion shall be served upon
all other parties of record to the proceeding contemporaneously with the filing
thereof. Any party may file written pleadings contesting a motion to extend
which shall be served upon all other parties contemporaneously with the filing
thereof.
Commissioner's
] Office for Administrative Hearings
and Subrogation
.
(4)
(d)
] Appearances and right to representation.
Any party may appear on his/her own behalf or may be represented by an attorney
at law in good standing with the State Bar of Texas or by an authorized representative.
The IHO may require any person appearing in a representative capacity to provide
such evidence of his authority as the IHO may deem necessary.
(e)
(1)
(f)
] Confidentiality. All personal
information regarding applicants or clients in the possession of the commission
must be used only for purposes directly connected with the administration
of the Act. Information may not be shared with advisory or other bodies which
do not have official responsibility for administration of the Act.
(g)
] Testimony under oath or affirmation.
In any hearing, the IHO shall administer an oath or affirmation before permitting
testimony from any witness.
(h)
] Class actions. Class actions
are not permitted under these rules.
(i)
] Reasonable accommodation.
The commission shall provide reasonable accommodation to the client or other
individuals with disabilities, upon request, for purposes of the appeal process
as required by the Americans with Disabilities Act of 1990, 42 United States
Code §12101 et seq. and the Act, §504.
(j)
] Stay of official acts or services.
A request for an informal or formal appeal does not of itself stay an official
act of or the provision of services by the commission unless the official
act or services are stayed by controlling law.
(k)
] Limitations on number of witnesses.
The IHO has the right in any proceeding under these rules to limit the number
of witnesses whose testimony will be repetitious and to set time limits in
order to exclude irrelevant, immaterial, or unduly repetitious testimony,
so long as all viewpoints are given a reasonable opportunity to be heard.
(l)
] Mileage and Witness fees.
(m)
(a)
(b)
Commissioner's
]
Office for Administrative Hearings
and Subrogation
. [
The
hearing must be held within 45 days of an individual's request for review,
unless informal resolution is achieved prior to the 45th day, or the parties
agree to a specific extension of time.
]
Commissioner's
] Office for Administrative
Hearings
and Subrogation
. Upon receipt of the Petition for Administrative
Hearing, the [
Commissioner's
] Office for Administrative Hearings
and Subrogation
shall:
within five days of receipt of the petition for
administrative hearing
];
TRAC
] in accordance with the Rehabilitation Act [
within
ten days of receipt of the Petition for Administrative Hearing and immediately
]
and
forward a copy of the Petition for Administrative
Hearing to the IHO;
(8)
(c)
] Impartial Hearing Officer.
Texas Rehabilitation Advisory Council
] (the Act,
§ 105, as amended in 1992); and
and
]
, in addition to all of the above,
]
successfully completed impartial hearings training presented by the commission
;
and [
.
]
(e)
]-(j) of this section, except
subsection (j)(4)(F)
of this section
, in the interest of justice
or to expedite the proceedings. If prior to adjournment of a hearing either
party disagrees with a ruling or otherwise so requests, the IHO shall include
in the written record a justification, and an explanation of how the decision
is in the interest of justice and/or reasonably necessary to expedite the
proceedings. Actions taken under this subsection shall be limited to procedural
matters, and no party shall lose any substantive rights.
(d)
] Ex Parte Communications. Unless
required for the disposition of ex parte matters authorized by law, the IHO
may not communicate, directly or indirectly, in connection with any issue
of fact or law with the commissioner or any party or a party's representative,
except upon notice to all parties.
(e)
] Prehearing Procedures.
and
]
(xiv)
] such other matters as will
promote the orderly and prompt resolution of the issues and conduct of the
hearing.
will
] be recorded or transcribed.
,
within 14 days of service,
] file a statement specifying the party's
present position on any or all of the following
listed in clauses (i)-(v)
of this subparagraph
as required by the IHO. Parties shall supplement
this statement on a timely basis. The statement
may
[
shall
] include:
; and
]
(v)
(3)
(A)
(B)
(C)
(4)
] Stipulations.
(f)
] Pleadings.
Commissioner's
] Office for Administrative Hearings
and Subrogation
.
(g)
(1)
(A)
(B)
(i)
(ii)
(iii)
(iv)
(C)
(D)
(E)
(F)
(2)
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(3)
(A)
(B)
(C)
(D)
(E)
(4)
(A)
(B)
(C)
(D)
(E)
(5)
(A)
(B)
(C)
(D)
(E)
(6)
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(7)
(A)
(B)
(i)
(ii)
(iii)
(iv)
(C)
(i)
(ii)
(I)
(II)
(III)
(IV)
(iii)
(iv)
(v)
(vi)
Dismissal without Hearing.
]
(1)
(A)
] failure to prosecute;
(B)
] unnecessary duplication
of proceedings or res judicata;
(C)
] withdrawal;
(D)
] moot questions;
(E)
] lack of jurisdiction;
(F)
] failure to raise a material
issue in the pleading;
(G)
] failure of a party to
appear at a scheduled hearing.
(2)
The hearing must take place within 45 days of the request unless additional
time is granted as authorized by law.
] The location shall be the Commission's
regional or area office nearest the Appellant's residence or as agreed to
by the parties.
§361.48
];
(D)
(E)
] Exhibits.
(F)
] Offer of proof. When testimony
on direct examination is excluded by ruling of the IHO, the party offering
such evidence shall be permitted to make an offer of proof by dictating or
submitting in writing the substance of the proposed testimony prior to the
conclusion of the hearing. [
Such offer of proof shall be sufficient to
preserve the point for review by the commissioner.
] The IHO may ask
such questions of the witness as deemed necessary to satisfy that the witness
would testify as represented in the offer of proof. [
An alleged error
in sustaining an objection to questions asked on cross-examination may be
preserved without making an offer of proof.
]
Commissioner's
] Office for Administrative
Hearings
and Subrogation
shall submit the IHO opinion to the
Commissioner with a copy to each party.
Action by the Commissioner ].
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(1)
(2)
(3)
(4)
(5)
(A)
(B)
(C)
(D)
(E)
(F)
(6)
Motions for Rehearing
].
(a)
(b)
(c)
(d)
(e)
Judicial Review of Final Order
].
(a)
Pursuant to these rules
and 29 United States Code §722(c)(5)(J) the district courts of Travis
County, Texas, have jurisdiction to hear appeals of final orders of the Commission.
The standard of review will be by substantial evidence. A party may seek judicial
review of the final order of the Commission by appealing to the Travis County
District Courts within 30 days of receipt of notice that a party's motion
for rehearing has been overruled.
]
Chapter 106.
Contract Administration