Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 73.
CIVIL RIGHTS
The Texas Department of Human Services (DHS) proposes the repeal of §73.1, §73.2, §73.3, §73.4, §73.5, §73.6, §73.7, §73.8, §73.9, §73.10, §73.11,
and §73.12, concerning civil rights administration and statement of compliance; §73.2107,
concerning use of department facilities by public employees organization or
association, §73.3001, §73.3002, §73.3003, and §73.3004,
concerning legal basis; §73.3101, concerning agreements and contracts; §73.3201, §73.3202, §73.3203,
and §73.3204, concerning dissemination of information and training; and §§73.3301-73.3311,
concerning complaints; and new Subchapter A, Purpose and Application; Subchapter
B, Discrimination Prohibited; Subchapter C, Civil Rights Responsibilities;
Subchapter D, Dissemination of Information and Training; Subchapter E, Complaints
of Discrimination; Subchapter F, Compliance Reviews and Standards; and Subchapter
G, Contract Compliance, composed of new §§73.1, 73.2, 73.100, 73.101,
73.200-73.212, 73.300-73.302, 73.400- 73.413, 73.500, 73.501, and 73.600,
in its Civil Rights chapter. The purpose of the repeals and new sections is
to comply with required changes resulting from the passage of the Americans
with Disabilities Act, the Civil Rights Restoration Act, and amendments and
changes in the Code of Federal Regulations. The rules are being repealed and
new rules proposed in accordance with §2001.039 of the Government Code.
Eric M. Bost, commissioner, 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 as a result of enforcing or administering the sections.
Mr. Bost 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 adoption
of the proposed rules will be the deletion of obsolete rules and the adoption
of applicable and updated rules regarding civil rights protections for DHS
program applicants and recipients. There will be no adverse economic effect
on small or micro businesses, because the rules do not add new requirements.
There is no anticipated economic cost to persons who are required to comply
with the proposed sections, because the rules do not add new requirements.
Questions about the content of this proposal may be directed to Mathis
Hale at (512) 438-3705 in DHS's Civil Rights Department. Written comments
on the proposal may be submitted to Supervisor, Rules and Handbooks Unit-021,
Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
Subchapter A. CIVIL RIGHTS ADMINISTRATION AND STATEMENT OF COMPLIANCE
40 TAC §§73.1 - 73.12
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The repeals implement the Human Resources Code, §§22.001-22.030.
§73.1.Documentation.
§73.2.Methods of Recording.
§73.3.Office Accessibility.
§73.4.Affirmative Action.
§73.5.Awareness of Special Needs.
§73.6.Cultural Awareness Training.
§73.7.Staff Education.
§73.8.Public Information.
§73.9.Statistical Data.
§73.10.Administrative Responsibilities and Referral Procedures.
§73.11.Complaint Procedure.
§73.12.Compliance by Contractors.
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 5, 2001.
TRD-200100710
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §73.1, §73.2
The new sections are proposed under the Human Resources Code,
Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The new sections implement the Human Resources Code, §§22.001-22.030.
§73.1.Purpose and Application.
These rules implement the federal and state civil rights laws and regulations
that prohibit discrimination in all programs and services administered directly
by or through contractual, licensing, or other arrangements with the Texas
Department of Human Services (DHS).
§73.2.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings unless the content clearly indicates otherwise.
(1)
Applicant:
(A)
employment-related - A person who submits a written application
for employment with the Texas Department of Human Services (DHS).
(B)
service-related - A person or entity who submits a written
application or orally requests participation in a DHS-assisted program.
(2)
Civil rights complainant:
(A)
employee-related - A person or group of persons who allege
discrimination in employment on the basis of race, color, national origin,
age, sex, disability, or religion.
(B)
service-related - A person or group of persons who allege
discrimination in the delivery of program benefits on the basis of race, color,
national origin, age, sex, disability, political beliefs, or religion.
(3)
Complaint - An allegation of discrimination made by a civil
rights complainant.
(4)
Contract - An agreement between two or more parties for
services or goods in exchange for something of value.
(5)
Contractor - An association, partnership, or other legal
entity, with whom DHS has a written contract.
(6)
Discrimination - Actions in violation of federal or state
civil rights laws and regulations.
(7)
External complaints - Complaints of discrimination that
are filed with a federal agency by service applicants and recipients. These
complaints are processed and coordinated by the state office Civil Rights
Department.
(8)
Facility - All or any portion of buildings, structures,
sites, complexes, equipment, rolling stock, roads, walks, passageways, parking
lots, or other real or personal property, including the site where the building,
property, structure, or equipment is located. This includes a facility that
is used by DHS directly or a facility that is used in an arrangement to provide
services or benefits to applicants or recipients.
(9)
Federal financial assistance - Any grant, loan, contract
(other than a procurement contract or contract of insurance or guaranty),
or other arrangement by which DHS receives federal funds to operate its programs.
(10)
Non-compliance - The final determination that discrimination
has occurred or a civil rights law or DHS civil rights policy or procedure
has been violated. The non-compliance is established by a formal review or
investigation of an allegation of discrimination or through a routine review
or inspection of a DHS operation, or of entities that either contract or have
another arrangement with DHS to provide services.
(11)
Recipient - An applicant who has been determined as eligible
to receive service or benefits from DHS's programs administered by DHS directly
or through other arrangements.
(12)
Regional civil rights office - An office located in one
or more of the 10 DHS regions throughout the state that is responsible for
the day to day civil rights functions in their respective regions.
(13)
Retaliation - Discrimination against an individual because
he or she filed a complaint of discrimination, participated in a discrimination
complaint investigation, or has otherwise opposed an unlawful discriminatory
practice.
(14)
State office civil rights department - The responsible
entity within DHS executive management that implements all aspects of program
and policy development for federal and state civil rights laws and regulations
within DHS.
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 5, 2001.
TRD-200100711
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §73.100, §73.101
The new sections are proposed under the Human Resources Code,
Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The new sections implement the Human Resources Code, §§22.001-22.030.
§73.100.Administrative Practices.
(a)
The Texas Department of Human Services (DHS) will not,
in administering its programs, directly or through contractual, licensing,
or other arrangements, on the grounds of race, color, national origin, sex,
age, disability, religion, or political belief unlawfully:
(1)
deny an individual services or other benefits provided
under its programs;
(2)
provide services or other benefits to an individual that
are different, provided in a different manner from services or benefits provided
to others under its programs, or not as effective as those provided to others;
(3)
subject an individual to segregation or separate treatment
in matters related to their receipt of services or other benefits provided
under its programs;
(4)
restrict an individual in the enjoyment of any advantage
or privilege enjoyed by others receiving services or other benefits provided
under its programs;
(5)
treat an individual differently from others in determining
whether the individual satisfies any eligibility or other requirement or condition
that individuals must meet in order to receive services or other benefits
provided under its programs;
(6)
deny an individual an opportunity to participate in a program
through the provision of services or otherwise afford individuals an opportunity
to do so which is different from that afforded others under its programs.
This includes the opportunity to participate in the program as an employee
where the primary objective of the federal financial assistance to the program
is to provide employment, including a program under which the employment is
provided to reduce unemployment;
(7)
deny an individual the opportunity to participate as a
member of a planning or advisory body that is an integral part of its programs;
(8)
provide significant assistance to an agency, organization,
or person that discriminates on the basis of an individual's disability in
providing any service to applicants and recipients of the program;
(9)
otherwise limit a qualified individual in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others receiving
services; or
(10)
select a site or location of facilities with the purpose
or effect of excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under any of its programs.
(b)
For purposes of these rules, services, to be equally effective,
are not required to produce the identical result or level of achievement for
individuals with disabilities and individuals without disabilities. To be
equally effective, the services must afford individuals with a disability
equal opportunity to obtain the same result, to gain the same benefit, or
to reach the same level of achievement in the most integrated setting appropriate
to the person's needs.
(c)
Despite the existence of separate or different programs
or activities, DHS does not unlawfully deny a qualified individual with a
disability the opportunity to participate in such programs or activities that
are not separate or different.
(d)
DHS does not, directly or through contractual, licensing,
or other arrangements, use criteria or methods of administration that have
the effect of subjecting qualified individuals with a disability to discrimination
on the basis of their disability, that have the purpose or effect of defeating
or substantially impairing accomplishment of the objectives of its programs
with respect to individuals with a disability, or that perpetuate the discrimination
of another entity if both entities are subject to common administrative control
or are agencies of the same state.
(e)
In determining the site or location of a facility, DHS
does not make selections that have the effect of unlawfully excluding individuals
with a disability from, denying them the benefits of, or otherwise subjecting
them to discrimination under any program or activity that receives or benefits
from federal financial assistance or that have the purpose or effect of defeating
or substantially impairing the accomplishment of the objectives of the program
or activity with respect to individuals with disabilities.
(f)
As used in this section, the services provided under a
program receiving or benefiting from federal financial assistance include
any service provided in or through a facility that has been constructed, expanded,
altered, leased or rented, or otherwise acquired, in whole or in part, with
federal financial assistance.
(g)
In programs limited by federal law, the exclusion of individuals
without disabilities from the benefits of a program limited by federal statute
or executive order to individuals with disabilities or the exclusion of a
specific class of individuals with disabilities from a program limited by
federal statute or executive order to a different class of individuals with
disabilities is not prohibited by these rules.
§73.101.Criteria and Methods of Administration.
The Texas Department of Human Services (DHS) does not, directly or
through contractual, licensing, or other arrangements, use criteria or methods
of administration which have the effect of subjecting individuals to discrimination.
DHS does not:
(1)
use criteria or methods of administration that have the
effect of defeating or substantially impairing accomplishment of the objectives
of a program because of discrimination; or
(2)
make unlawful distinctions on the grounds of race, color,
national origin, sex, age, disability, religion, or political belief, in relation
to the use of physical facilities, intake and application procedures, caseload
assignments, determination of eligibility, the amount and type of services,
and other benefits under DHS's programs.
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 5, 2001.
TRD-200100712
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §§73.200 - 73.212
The new sections are proposed under the Human Resources Code,
Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The new sections implement the Human Resources Code, §§22.001-22.030.
§73.200.Appointment of Civil Rights Director.
The commissioner of the Texas Department of Human Services (DHS) appoints
a member of its management team to serve as the director of civil rights who
will be responsible for DHS's Civil Rights Department. The civil rights director
will be responsible for the implementation and compliance with, Title VI and
Title VII of the Civil Rights Act of 1964 (Title VI and Title VII), the Americans
with Disabilities Act of 1990 (ADA), §504 of the Rehabilitation Act of
1973, and other applicable civil rights laws and regulations.
§73.201.Documentation.
The Texas Department of Human Services (DHS) obtains and documents
an assurance that each program is conducted and operated in compliance with
all the requirements imposed by or pursuant to these rules prior to and as
a condition of its implementation. This information is made available to United
States Department of Health and Human Services (HHS), United States Department
of Agriculture (USDA), and any federal-administrating agency with regulatory
responsibility for DHS. Documentation includes consideration of the impact
on applicants and recipients and ensure that services are provided without
discrimination.
§73.202.Methods of Recording and Keeping Statistical Data.
Each Texas Department of Human Services (DHS) facility or local office
participating in a program will have methods of recording and reporting the
delivery of service by race, ethnicity, and disability. DHS uses information
obtained to address service delivery needs. DHS collects and maintains racial,
ethnic and disability data showing the extent to which recipients participate
in its programs. This information will be supplied to federal administrating
agencies upon request.
§73.203.Office Accessibility.
The sites of the offices and facilities of the Texas Department of
Human Services (DHS) are accessible to all people regardless of race, color,
national origin, sex, age, disability, religion, or political belief.
§73.204.Complaint Procedure.
The Texas Department of Human Services (DHS) establishes a comprehensive
policy and procedures to handle civil rights complaints of discrimination.
§73.205.Program Participation.
The Texas Department of Human Services (DHS) takes affirmative steps
to overcome the effects of conditions that result or have resulted in discriminatorily
limiting participation in any program by applicants (even in the absence of
prior discrimination).
§73.206.Service Accessibility and Awareness of Special Needs.
(a)
The Texas Department of Human Services (DHS) takes affirmative
steps to ensure that applicants and recipients are assigned staff trained
to have an awareness of the cultural and linguistic needs of the service population.
This is not to imply that the staff member should be of the same race or national
origin as the client.
(b)
Where there are applicants and recipients who cannot express
themselves fluently in English, DHS and its contractors must provide alternative
methods for ensuring access to services.
§73.207.Civil Rights Training.
The Texas Department of Human Services (DHS) provides ongoing civil
rights training to staff. The training is designed to instill awareness of
ethnic, cultural and linguistic differences of diverse populations, including
persons with physical and mental disabilities, which may have an impact on
the delivery of services. The training is designed to develop the capability
of the staff to respond to the unique needs of applicants and recipients.
§73.208.Dissemination of Information to Staff.
The Texas Department of Human Services (DHS) makes information available
to staff (including information provided orally, in writing, or through other
alternative means) about the protections against discrimination ensured by
state and federal civil rights laws and regulations.
§73.209.Public Information.
(a)
The Texas Department of Human Services (DHS) informs applicants,
recipients, and the general public of applicable civil rights laws and regulations
and that its program benefits and services are provided on a nondiscriminatory
basis.
(b)
DHS disseminates information to the public regarding applicable
civil rights laws and regulations, including information regarding DHS's civil
rights policies and procedures, the right to file complaints and the addresses
of DHS's civil rights offices. DHS provides similar information about contacting
the United States Department of Health and Human Services, Office of Civil
Rights, and the United States Department of Agriculture, Civil Rights Office,
to file complaints.
(c)
DHS provides its civil rights policies in appropriate languages
in areas where there are applicants and recipients who have limited English
proficiency and provides similar information through alternative means to
applicants and recipients who are deaf, or hard-of-hearing.
§73.210.Employment Practices.
The Texas Department of Human Services (DHS) develops comprehensive
policies and procedures assuring that DHS's recruitment and employment practices
do not cause discrimination. DHS applies equal employment practices to assure
equal opportunity to and nondiscriminatory treatment of applicants and recipients.
§73.211.Administration and Compliance.
(a)
The Texas Department of Human Services' (DHS's) Civil Rights
Department provides each DHS facility, institution, and local office participating
in a program with a set of civil rights compliance standards.
(b)
Personnel who have supervisory responsibility for offices
or facilities of DHS or its contractors addresses compliance issues as they
relate to Title VI and other applicable civil rights laws and regulations
in their supervisory actions and reports.
(c)
The state office civil rights department monitors each
DHS office and facility for compliance with civil rights compliance standards.
(d)
The director of civil rights uses expertise, knowledge
of the state, and analysis of prevailing racial and ethnic conditions and
other relevant factors to determine the offices or facilities that will be
monitored and the time frame in which they will be monitored.
(e)
Upon discovery of a possible discriminatory act or an issue
of non-compliance with civil rights compliance standards, the appropriate
civil rights office representative notifies the appropriate manager of the
program or office. The notification is in writing and indicates the need for
an investigation to determine the facts or the need to take correct action
to resolve any issue of non-compliance.
(f)
If it is determined that discrimination or issue of non-compliance
with civil rights compliance standards exists, the appropriate civil rights
office representative initiates efforts to seek corrective action within a
reasonable time.
(g)
The state office civil rights department takes follow-up
action to determine that corrective action was completed.
(h)
The state office civil rights department prepares a complete
report of the entire review and makes it a part of agency files for review
by appropriate officials.
§73.212.Compliance by Contractors.
(a)
The Texas Department of Human Services (DHS) requires any
entity with which DHS contracts or has another arrangement to provide services,
to provide assurance that they will operate the program and provide services
and benefits in a nondiscriminatory manner in compliance with this chapter
and all applicable civil rights laws and regulations.
(b)
The state office Civil Rights Department informs contractors
that their compliance with Title VI of the Civil Rights Act of 1964 and other
applicable civil rights laws and regulations is a condition of their initial
and continued participation in any part of a DHS program.
(c)
DHS will not participate in a contractual or other relationship
that has the effect of subjecting applicants, recipients, or employees to
discrimination.
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 5, 2001.
TRD-200100713
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §§73.300 - 73.302
The new sections are proposed under the Human Resources Code,
Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The new sections implement the Human Resources Code, §§22.001-22.030.
§73.300.Information Given Clients and Public.
The Texas Department of Human Services (DHS) provides information to
the public, to applicants, recipients, participants in all DHS's programs
(including any other agency, institution, or organization participating in
a program through contractual, licensing, or other arrangements), state and
local staff, and other interested persons in the following manner:
(1)
DHS gives applicants and recipients information regarding
their rights during the intake process.
(2)
Whenever applicable, all public informational material
published by DHS reflects nondiscriminatory practices.
(3)
The appropriate civil rights office gives information about
the Civil Rights Act of 1964 and other applicable civil rights laws and regulations
to institutions, organizations, contractors, and individuals.
(4)
When people are pictured in publications that are distributed
to the public, DHS ensures representation from minority, non-minority, and
disability populations, when appropriate or content permitting.
§73.301.Information Given Agency Staff.
The Texas Department of Human Services (DHS) disseminates its discrimination
policy by:
(1)
including discrimination policy material in DHS's civil
rights handbook;
(2)
publishing the discrimination policy in agency newsletters,
annual reports, and other media;
(3)
including discrimination policy material in employee orientation,
in-service training, management training, and supervisor training programs;
and
(4)
representing minority, non-minority, and people with disabilities
in brochures, employee handbooks, or similar publications when appropriate
or content permitting.
§73.302.Civil Rights Training.
Civil rights training includes, but is not limited to:
(1)
the requirements of Title VI and Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act of 1990, section 504
of the Rehabilitation Act of 1973, and other applicable civil rights laws
and regulations;
(2)
civil rights compliance review policies and procedures;
(3)
procedures for investigating complaints of discrimination;
and
(4)
information regarding diversity awareness and the special
needs occasioned by the culture of applicants and recipients.
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 5, 2001.
TRD-200100714
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §§73.400 - 73.413
The new sections are proposed under the Human Resources Code,
Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The new sections implement the Human Resources Code, §§22.001-22.030.
§73.400.Establishment of Procedures.
The civil rights discrimination complaint procedure, at a minimum,
specifies the following.
(1)
A complaint of discrimination may be filed with either
the Texas Department of Human Services (DHS), United States Department of
Health and Human Services (HHS), Office of Civil Rights (OCR), United States
Department of Agriculture (USDA), or with all said agencies, by an applicant
or recipient or his or her designated representative. If the complaint is
filed with DHS, the complaint must be brought to the attention of the commissioner
of DHS or his or her designee.
(2)
The information contained in the complaint must describe
the type of discrimination alleged, indicate when and where such discrimination
took place, and describe pertinent facts and circumstances surrounding the
alleged discrimination.
(3)
The civil rights office ensures that a prompt and thorough
investigation is made of a complaint if the civil rights office determines
that the complaint will be investigated. The complaint investigation may include,
but is not limited to:
(A)
interviewing the complainant to get details of the complaint;
(B)
interviewing community leaders, representatives of local
civil rights groups, or others in positions to provide further information
about either the complaint incident or the delivery of services by DHS relevant
to the complaint;
(C)
visiting offices or facilities where the alleged discrimination
took place, interviewing staff and other persons who may have information
about the complaint, incident, or the delivery of services by DHS relative
to the complaint;
(D)
interviewing individuals in the their homes or other locations,
when appropriate; and
(E)
obtaining copies of and reviewing appropriate documents,
records, or statistics.
(4)
After the complaint has been investigated, the appropriate
agency staff will determine whether discrimination occurred. When appropriate,
DHS staff take corrective action to prevent recurrence of such discrimination.
DHS will monitor the corrective measures taken to eliminate the conditions
that may have contributed to the discriminatory act or acts.
(5)
The civil rights office advises the complainant will be
advised in writing of the agency's findings within 100 days from the receipt
of the complaint. In the same written notice the complainant that if he or
she is not satisfied with the decision, it may be appealed to HHS, OCR, and/or
the USDA.
(6)
DHS maintains records pertaining to the complaint that
include the details of the investigation, and the action taken by DHS. If
discrimination occurred, the records will indicate the nature of the corrective
action taken. DHS makes all complaint records available for review by appropriate
federal and state officials.
(7)
Information pertaining to the complaints of discrimination
and the investigation will only be disclosed by the civil rights office when
necessary for the investigation, in resolving the complaint, and in accordance
with the Public Information Act. DHS will not directly or through contractual,
licensing, or other arrangements, intimidate, retaliate, threaten, coerce,
or discriminate against any applicant or recipient because he or she has made
a complaint, testified, assisted, or participated in any manner in a civil
rights investigation, proceeding, or hearing. Staff, applicants, and recipients
will be advised that actions of this kind are prohibited and will be investigated
according to established agency policies and procedures.
§73.401.Filing Complaints.
The complaint may be filed with any the Texas Department of Human Services
(DHS) employee or contract agency. The complaint may be filed by personal
contact, letter, or other means. A complaint must be filed within 180 days
after the alleged discriminatory act. When a DHS employee or contract agency
staff receives a complaint it must be forwarded to a DHS civil rights office
for processing.
§73.402.Procedure for Filing.
(a)
Any employee of the Texas Department of Human Services
(DHS) or entity with whom DHS has a contract or other arrangement to provide
services may accept a complaint made in person. Complaints made in person
will be referred to persons at a worker level or above. However, if no professional
staff member is available and the complainant insists on filing a complaint,
a complaint of discrimination form must be supplied. Whenever possible, a
person of the rank of worker or above will explain the complaint procedure
prior to offering complaint of discrimination forms for signature. Complaints
received by a contract agency must be referred to the appropriate agency contract
management staff.
(b)
Applicants or recipients who believe they have been subject
to discrimination may file a written complaint with the Food and Nutrition
Service (FNS), United States Department of Agriculture (USDA), the United
States Department of Health and Human Services (HHS), Office of Civil Rights
(OCR), or with DHS. The applicants or recipients may file with DHS or one
of the federal agencies mentioned above or with both a federal agency and
DHS.
(c)
The procedures for filing discrimination complaints will
be explained to each individual who expresses an interest in filing a discrimination
complaint. In addition, DHS advises the individual of the right to file a
complaint file with either or both the federal agencies mentioned above and
DHS. Complaints filed must contain the following information:
(1)
the applicant's or recipient's name, address, and telephone
number or other means for contacting the person alleging discrimination;
(2)
the location and name of the office that is accused of
discriminatory practices;
(3)
the nature of the incident or action or the aspect of program
administration that led the person to allege discrimination;
(4)
the basis on which the complainant feels discrimination
exists (race, color, national origin, age, sex, disability, political beliefs,
or religion).
(5)
the names, titles (if appropriate), and addresses of persons
who may have knowledge of the alleged discriminatory acts; and
(6)
the date or dates on which the alleged discriminatory actions
occurred.
(d)
After the applicant or recipient makes known his or her
intention of filing a civil rights complaint, a DHS representative assists
the complainant in the preparation and mailing of the complaint of discrimination
form if needed. After completion, the complainant will sign the complaint
of discrimination form. If the complainant does not complete the complaint
of discrimination form, DHS staff complete the form for the complainant and
forward it to the appropriate civil rights office.
§73.403.Handling Complaints.
(a)
The state office or regional civil rights office determines
whether the complaint is subject to investigation and is responsible for investigating
the complaint. In determining the staff responsible for the investigation,
the following factors will be considered:
(1)
where the complaint originated;
(2)
whether state office or regional office staff are involved
or mentioned in the complaint; or
(3)
whether representatives of a contractor or other entity
with which DHS contracts are involved or mentioned in the complaint.
(b)
The Texas Department of Human Services (DHS) commissioner
is notified by the appropriate federal agency when service applicants, recipients,
and DHS employees file external complaints of discrimination. The state office
Civil Rights Department processes and coordinates all external complaints.
Any external complaints received in the region must be forwarded within five
workdays to the state office civil rights department.
§73.404.Acknowledgment of Complaint.
The civil rights office will acknowledge in writing that the complaint
has been received by the Texas Department of Human Services (DHS) within twelve
workdays of receipt. The notice of complaint investigation must be sent to
the complainant at least seven days in advance of the date set for the investigation.
§73.405.Records.
(a)
A file containing information used to investigate the complaint
and make a determination regarding the allegations includes, but is not limited
to:
(1)
the complaint of discrimination form;
(2)
an acknowledgement of complaint;
(3)
a notice of investigation;
(4)
a report of investigation of civil rights complaint; and
(5)
a notice of closing of complaint.
(b)
The regional civil rights office maintains the investigative
file. When the regional civil rights office conducts the investigation, they
forward a copy of the results and other relevant documentation to the Texas
Department of Human Services (DHS) state office civil rights director or his
or her designee, who maintains the documentation.
(c)
The state office civil rights office retains records for
a period of three years from date of origin and makes them available to representatives
of the United States Department of Health and Human Services (HHS) or United
States Department of Agriculture (USDA), or both.
§73.406.Investigation Procedure.
(a)
The investigation begins within 10 workdays from the date
the civil rights office received the complaint and determined it to be subject
to investigation. The investigation will be completed within 90 workdays from
the date that the complaint was filed.
(b)
A representative of the state office Civil Rights Department
or the regional civil rights office investigates complaints.
(c)
All data collected by the representative are subject to
the Public Information Act and subject to release to the public unless it
fails within one of the exceptions in the act.
(d)
Unauthorized disclosure of information is subject to disciplinary
action by the Texas Department of Human Services (DHS).
§73.407.Regional Report of Investigation of Complaint of Discriminations.
(a)
When the complaint of discrimination involves regionally
administered programs, the appropriate regional civil rights office representative
will complete an investigation report. The report will contain a summary of
factual information obtained by the civil rights investigator in the process
of preparing for and conducting the complaint investigation. The report may
include recommended action to be taken by the appropriate staff.
(b)
Possible outcomes of the investigation may be any one or
a combination of the following:
(1)
the claim cannot be substantiated;
(2)
the claim is substantiated and discrimination is or will
be corrected;
(3)
the claim is substantiated but cannot be corrected at the
regional level. Assistance will be required from the Civil Rights Department;
or
(4)
the claim is substantiated in part.
(c)
After the regional civil rights office representative completes
the report of investigation, a regional civil rights review committee reviews
the report.
§73.408.Regional Review of Complaints and Reports of Investigation.
(a)
Regional civil rights review committee may be composed
of the following members:
(1)
the regional administrator or designee, as chairperson;
(2)
the regional civil rights director or his/her representative;
(3)
a legal representative of the Texas Department of Human
Services (DHS); and
(4)
a representative of the appropriate program area wherein
the complaint falls, as appointed by the chairperson.
(b)
If the review committee concurs with the outcome of the
investigation, the committee sends the report of investigation to the state
office Civil Rights Department for a final review.
(c)
If the regional review committee does not concur with the
outcome of investigation the report of investigation is sent back with recommendations
to the regional civil rights representative.
(d)
If the regional review committee cannot reach a decision
or state office civil rights department assistance is requested, the committee
sends the report to the state office civil rights review committee for review.
§73.409.State Office Review Committee for Regional Complaints and Reports of Investigation.
(a)
The state office civil rights review committee may be composed
of:
(1)
the director of the state office Civil Rights Department
or designee, as chairperson;
(2)
the deputy commissioner for the affected program, or his
or her designee;
(3)
a representative from the Office of the General Counsel;
(4)
a representative of the appropriate department or program
area, as appointed by the chairperson; and
(5)
a representative from the Office of the Deputy Commissioner
for Regional Operations.
(b)
The review committee records its concurrence or non-concurrence
with the original decision. If there is concurrence, the matter is closed.
If there is non-concurrence, the state office review committee recommends
further action, if needed, and sends the report to the regional civil right
representative.
(c)
The committee records the decision of the state office
review committee will be recorded in a report of investigation.
(d)
Either the regional or state office review committee will
forward the results of their review to the state office civil rights director
or his or her designee for a final decision. The state office civil rights
director or his or her designee will indicate his or her decision to the appropriate
civil rights representative.
§73.410.State Office Reports of Investigation of Complaint of Discrimination.
When the complaint of discrimination involves programs administered
directly by state office, when the civil rights department is directed to
investigate a case, or has jurisdiction to investigate a allegation of discrimination,
then the appropriate state civil rights office representative will conduct
an investigation and complete a report of investigation. The state office
civil rights director or his or her designee will review the report of investigation.
If the state office civil rights director or his or her designee does not
concur with the results of the investigation he or she will forward the report
of investigation to the state office review committee.
§73.411.State Office Review Committee for Programs Administered by State Office Civil Rights Department.
(a)
When a report of investigation, involving programs administered
directly by the Texas Department of Human Services (DHS) state office, is
forwarded to the state office review committee, the state office review committee
may include other DHS staff associated with the program involved as follows:
(1)
director of the Long Term Care-Regulatory (LTC-R) Investigations
Unit or designee, if nursing facilities are involved;
(2)
director of the LTC-R Certification, Provider Enrollment,
Billing Unit, or designee if nursing facilities are involved; and
(3)
a representative of state office civil rights department.
(b)
The state office review committee records its concurrence
or non-concurrence. If there is concurrence, the matter is closed. If there
is non-concurrence, the state office review committee recommends further action,
if needed, and forwards the report of investigation to the state office civil
rights director.
§73.412.Action Taken.
(a)
If the claim cannot be substantiated, no further action
is taken other than to complete the required investigative reports.
(b)
If the claim is substantiated in any part, the civil rights
representative recommends to appropriate Texas Department of Human Services
(DHS) management the action to be taken. The civil rights representative secures
a statement as to the steps that have been or will be taken to take corrective
action. If the complaint is against a staff member of DHS, the statement comes
from the immediate supervisor of the person complained against and describe
the actions taken toward correcting the cause for complaint. All corrective
action taken to resolve issues related to the complaint must be documented
and the documents forwarded to the civil rights office for review and inclusion
into the investigative file.
(c)
State office civil rights director or his or her designee
forwards all complaints of discrimination within the Food Stamp program to
the United States Department of Agriculture, Food and Nutrition Service, for
their review and concurrence.
§73.413.Discrimination Complaint Closure.
The civil rights office completes a closure letter summarizing the
allegation(s) and the results of the investigation. The civil right representative
sends the closure letter to the complainant or his or her designated representative,
the alleged discriminating official (ADO), the supervisor of the ADO, and
the state office civil rights department. All closure information will be
filed in the investigative file.
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 5, 2001.
TRD-200100715
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §73.500, §73.501
The new sections are proposed under the Human Resources Code,
Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The new sections implement the Human Resources Code, §§22.001-22.030.
§73.500.Definition.
A compliance review is a systematically planned and regularly initiated
review or investigation of a program administered by the Texas Department
of Human Services (DHS) directly or through a contract or other arrangements.
The compliance review consists, at a minimum, of an assessment and evaluation
of the civil rights policies, procedures, and practices of the entity being
reviewed.
§73.501.Compliance Standards.
(a)
The director of the Civil Rights Department uses expertise,
knowledge of the Texas Department of Human Services (DHS) eligibility programs
and their operations, and analysis of prevailing racial and ethnic conditions
and other relevant factors to determine the selection of offices or facilities
that will be reviewed and the time frame in which they will be reviewed. The
compliance reviews that are conducted by DHS staff include, but are not limited
to, the following:
(1)
discussion with clients, former clients, employees, other
members of the community, civil rights groups and others who are familiar
with the facility or office;
(2)
review of data and records, a conference with the facility
head or his/her representative, and a tour of the facility;
(3)
review of contractual and licensing agreements with contractors,
subcontractors and licensees;
(4)
review of the publication of nondiscrimination policies;
and
(5)
review of facts related to:
(A)
desegregation of physical facilities;
(B)
availability of notices to applicants and recipients, and
the public concerning the facility's policy of compliance with the Civil Rights
Act and other applicable civil rights laws and regulations;
(C)
extent of minority participation in programs;
(D)
procedures for the delivery of services;
(E)
uniform use of courtesy titles;
(F)
inclusion of minority group staff members;
(G)
referral practices;
(H)
employment practices as related to delivery of services;
(I)
the bilingual and bicultural capability of the staff for
delivery of services;
(J)
staff's awareness of cultural differences; and
(K)
periodic Title VI and other civil rights-related training
of staff.
(b)
Upon discovery of a suspected discriminatory act, the appropriate
civil rights office representative notifies the appropriate manager of the
program, office, or facility in writing of the need for an investigation to
determine the facts. If it is found that discrimination exists, the appropriate
civil rights office representative initiates negotiations to seek corrective
action taken within a reasonable time.
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 5, 2001.
TRD-200100716
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §73.600
The new section is proposed under the Human Resources Code,
Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The new section implements the Human Resources Code, §§22.001-22.030.
§73.600.Assurances and Compliance Standards.
(a)
The Texas Department of Human Services (DHS) provides written
information to each contractor regarding the requirements of Title VI and
other applicable civil rights laws and regulations.
(b)
When services and benefits will not be provided by DHS
directly but through a contract or other arrangement with another entity,
DHS staff include a requirement in each DHS contract or arrangement assuring
that services and benefits must be provided without discrimination.
(c)
DHS obtains from each service delivery contractor, such
as a nursing facility, a written assurance that it will comply with Title
VI and other applicable civil rights laws and regulations. In all contracts
or written agreements, a nondiscrimination clause will be included. Vouchers
and bills submitted to DHS from non-institutional contractors will include
a certification that the services were rendered regardless of race, color,
national origin, sex, age, disability, religion, or political belief.
(d)
The director of civil rights or his or her designee shall
uses expertise, knowledge of the state, and analysis of prevailing racial
and ethnic conditions and other relevant factors to determine the monitoring
criteria and schedule by which contractors, licensees, and other entities
with which DHS has an arrangement to provide services are reviewed. Civil
rights contractor compliance reviews, which are conducted by DHS staff, will
include a review of civil rights compliance within the terms of their contract
and all applicable civil right laws and regulations.
(e)
DHS instructs agency staff who regularly visit contracted
service facilities and have contact with families of applicants and recipients
to notify DHS's civil rights department of any suspected discriminatory act,
or any discrepancies in the intake, processing, and treatment of applicants
and recipients.
(f)
A complete report of reviews becomes a part of agency files
for review by appropriate HHS officials or other federal administrative agencies.
(g)
When discrimination was found to exist and a contractor
does not take corrective action within a designated period, the appropriate
program executive in coordination with the director of civil rights may take
appropriate action, including, but not limited to, terminating the contract
or other arrangement.
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 5, 2001.
TRD-200100717
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §73.2107
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The repeal implements the Human Resources Code, §§22.001-22.030.
§73.2107.Use of Departmental Facilities by a Public Employee Organization or Association.
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 5, 2001.
TRD-200100718
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §§73.3001 - 73.3004
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Human Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under the Human Resources
Code, Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The repeals implement the Human Resources Code, §§22.001-22.030.
§73.3001.Applicability of Civil Rights Law.
§73.3002.Discriminatory Practices.
§73.3003.Administrative Practices.
§73.3004.Handicapped Individuals.
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 5, 2001.
TRD-200100719
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
40 TAC §73.3101
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Human Services or in the Texas Register office, Room
245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Human Resources
Code, Title 2, Chapter 22, which authorizes the department to administer public
assistance programs.
The repeal implements the Human Resources Code, §§22.001-22.030.
§73.3101.Agreements and Contracts.
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 5, 2001.
TRD-200100720
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: March 18, 2001
For further information, please call: (512) 438-3108
Subchapter B. DISCRIMINATION PROHIBITED
Subchapter C. CIVIL RIGHTS RESPONSIBILITIES
Subchapter D. DISSEMINATION OF INFORMATION AND TRAINING
Subchapter E. COMPLAINTS OF DISCRIMINATION
Subchapter F. COMPLIANCE REVIEWS AND STANDARDS
Subchapter G. CONTRACT COMPLIANCE
Subchapter V. USE OF DEPARTMENT FACILITIES BY PUBLIC EMPLOYEE ORGANIZATIONS
Subchapter EE. LEGAL BASIS
Subchapter FF. COMPLIANCE BY CONTRACTED AGENTS
Subchapter GG. DISSEMINATION OF INFORMATION AND TRAINING