40 TAC §§104.1 - 104.8
The new rules 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.
(1)
The purpose of these rules is to provide the Texas Rehabilitation
Commission with a system for the institution, conduct, and determination of
"due process hearings" 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.
(2)
The procedures implemented by this Chapter ensure that
an applicant or eligible individual who is dissatisfied with any determination
made by personnel of the Commission that affects the provision of vocational
rehabilitation services may request, or, if appropriate, may request through
the individual's representative, a timely review of that determination.
(b)
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. 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 due process hearings which
are conducted pursuant to federal law.
(c)
Scope.
(1)
This chapter applies to client (applicant) appeals, mediations,
and hearings before the Texas Rehabilitation Commission.
(2)
These rules shall be construed to insure fair and expeditious
determinations.
(3)
These rules may supplement the procedures required by law.
(d)
Source: 34 CFR §361.57(a).
§104.2.Definitions.
(a)
Applicant--An individual who has applied for services under
the Act, but for whom an eligibility determination has not been made.
(b)
Commission--The Texas Rehabilitation Commission (TRC),
its officers and agents.
(c)
Commissioner--The commissioner of the Texas Rehabilitation
Commission.
(d)
Eligible individual--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 "eligible
individual" and "client" are synonymous.
(e)
Appeal--The timely filing of a Petition for Due Process
Hearing due to a client's continued dissatisfaction with a decision of the
Commission regarding the furnishing or denial of services, followed by a formal
due process hearing conducted under these rules by an impartial hearing officer
regarding allegations set forth in the client's Petition for Due Process Hearing
regarding the furnishing or denial of services. This term includes pre-hearing
conferences.
(f)
Impartial hearing officer--
(1)
Impartial hearing officer means an individual who-
(A)
Is not an employee of a public agency (other than an administrative
law judge, hearing examiner, or employee of an institution of higher education);
(B)
Is not a member of the Rehabilitation Council of Texas;
(C)
Has not been involved previously in the vocational rehabilitation
of the applicant or eligible individual;
(D)
Has knowledge of the delivery of vocational rehabilitation
services, the State plan, and the Federal and State regulations governing
the provision of services;
(E)
Has received training with respect to the performance of
official duties; and
(F)
Has no personal, professional, or financial interest that
would be in conflict with the objectivity of the individual.
(2)
An individual is not considered to be an employee of a
public agency for the purposes of this definition solely because the individual
is paid by the agency to serve as a hearing officer.
(3)
Source: 34 CFR §361.5(b)(25).
(g)
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.
(h)
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 appeal process and is the point of contact for client's questions about
due process hearings. Correspondence must to be addressed to Office for Administrative
Hearings and Subrogation, Texas Rehabilitation Commission, 4900 North Lamar
Blvd., Austin, TX 78751-2399.
(i)
Qualified and impartial mediator-
(1)
Qualified and impartial mediator means an individual who-
(A)
Is not an employee of a public agency (other than an administrative
law judge, hearing examiner, employee of a State office of mediators, or employee
of an institution of higher education);
(B)
Is not a member of the Rehabilitation Council of Texas;
(C)
Has not been involved previously in the vocational rehabilitation
of the applicant or eligible individual;
(D)
Is knowledgeable of the vocational rehabilitation program
and the applicable Federal and State laws, regulations, and policies governing
the provision of vocational rehabilitation services;
(E)
Has been trained in effective mediation techniques consistent
with any State-approved or -recognized certification, licensing, registration,
or other requirements; and
(F)
Has no personal, professional, or financial interest that
would be in conflict with the objectivity of the individual during the mediation
proceedings.
(2)
An individual serving as a mediator is not considered to
be an employee of the Commission for the purposes of this definition solely
because the individual is paid by the Commission to serve as a mediator.
(3)
Source: 34 CFR §361.5(b)(43).
§104.3.General Requirements.
(a)
Notification. An applicant or eligible individual or, as
appropriate, the individual's representative, will be provided notice of-
(1)
The right to obtain review of State unit determinations
that affect the provision of vocational rehabilitation services through an
impartial due process hearing under §104.4(b) of this title (relating
to Mediation and Due Process Hearings);
(2)
The right to pursue mediation under §104.4(a) of this
title (relating to Mediation and Due Process Hearings) with respect to determinations
made by designated State unit personnel that affect the provision of vocational
rehabilitation services to an applicant or eligible individual;
(3)
The requirement that requests for mediation and due process
hearings must be filed with the TRC Office for Administrative Hearings and
Subrogation, at the address provided in §104.2(i) of this title;
(4)
The manner in which a mediator or impartial hearing officer
may be selected consistent with the requirements of §104.4(a) and §104.4(c)
of this title (relating to Mediation and Due Process Hearings); and
(5)
The availability of the client assistance program, established
under 34 CFR part 370, to assist the applicant or eligible individual during
mediation sessions or impartial due process hearings.
(b)
Timing. Notice described in subsection (a) of this section
will be provided in writing-
(1)
At the time the individual applies for vocational rehabilitation
services;
(2)
At the time the individual is assigned to a category in
the Commission's order of selection, if an order of selection under 34 CFR §361.36
has been established;
(3)
At the time the IPE is developed; and
(4)
Whenever vocational rehabilitation services for an individual
are reduced, suspended, or terminated.
(c)
Evidence and representation. The procedures established
in this chapter-
(1)
Provide an applicant or eligible individual or, as appropriate,
the individual's representative with an opportunity to submit during mediation
sessions or due process hearings evidence and other information that supports
the applicant's or eligible individual's position; and
(2)
Allow an applicant or eligible individual to be represented
during mediation sessions or due process hearings by counsel or other advocate
selected by the applicant or eligible individual.
(d)
Impact on provision of services. The Commission will not
institute a suspension, reduction, or termination of vocational rehabilitation
services being provided to an applicant or eligible individual, including
evaluation and assessment services and IPE development, pending a resolution
through mediation, pending a decision by a hearing officer or reviewing official
unless-
(1)
The individual or, in appropriate cases, the individual's
representative requests a suspension, reduction, or termination of services;
or
(2)
The Commission has evidence that the services have been
obtained through misrepresentation, fraud, collusion, or criminal conduct
on the part of the individual or the individual's representative.
(e)
Ineligibility. Applicants who are found ineligible for
vocational rehabilitation services and previously eligible individuals who
are determined to be no longer eligible for vocational rehabilitation services
pursuant to federal rules at 34 CFR §361.43 are permitted to challenge
the determinations of ineligibility under the procedures described in this
chapter.
(f)
Source: 34 CFR §361.57(b).
§104.4.Mediation and Due Process Hearings.
(a)
Mediation.
(1)
As required under §104.3(a)(2) of this title (relating
to General Requirements), an applicant or eligible individual and the Commission
may resolve disputes involving Commission determinations that affect the provision
of vocational rehabilitation services through a mediation process that is
available, at a minimum, whenever an applicant or eligible individual or,
as appropriate, the individual's representative requests an impartial due
process hearing under this rule.
(2)
The following procedures apply to mediation -
(A)
Participation in the mediation process is voluntary on
the part of the applicant or eligible individual, as appropriate, and on the
part of the Commission;
(B)
Use of the mediation process will not be used to deny or
delay the applicant's or eligible individual's right to pursue resolution
of the dispute through an impartial hearing held within the time period specified
in subsection (b)(1) of this rule or any other rights provided under this
Chapter. At any point during the mediation process, either party or the mediator
may elect to terminate the mediation. In the event mediation is terminated,
either party may pursue resolution through an impartial hearing;
(C)
The mediation process will be conducted by a qualified
and impartial mediator, as defined in §104.2(i) of this title, who must
be selected from a list of qualified and impartial mediators maintained by
the State, by agreement between the Commissioner and the applicant or eligible
individual or, as appropriate, the individual's representative; and
(D)
Mediation sessions will be scheduled and conducted in a
timely manner and are held in a location and manner that is convenient to
the parties to the dispute.
(3)
Discussions that occur during the mediation process will
be kept confidential and will not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation process
may be required to sign a confidentiality pledge prior to the commencement
of the process.
(4)
An agreement reached by the parties to the dispute in the
mediation process must be described in a written mediation agreement that
is developed by the parties with the assistance of the qualified and impartial
mediator and signed by both parties. Copies of the agreement must be sent
to both parties.
(5)
The costs of the mediation process will be paid by the
Commission. The Commission will not pay for any costs related to the representation
of an applicant or eligible individual authorized under §104.3(c)(2)
of this title (relating to General Requirements).
(6)
As required by §104.3(c) of this title, the applicant
or eligible individual or, if appropriate, the individual's representative
will --
(A)
be given the opportunity to submit during mediation sessions
evidence and other information that supports the applicant's or eligible individual's
position; and
(B)
be allowed to be represented during mediation sessions
by counsel or other advocate selected by the applicant or eligible individual.
(b)
Impartial due process hearings. The following formal review
procedures, as required under §104.3(a)(1) of this title (relating to
General Requirements), are established:
(1)
All hearings will be held within the period of time prescribed
by §104.8 of this title (relating to Time for Healing);
(2)
The applicant or eligible individual or, if appropriate,
the individual's representative will --
(A)
be given the opportunity to submit during due process hearings
evidence and other information that supports the applicant's or eligible individual's
position, as required by §104.3(c) of this title (relating to General
Requirements); and
(B)
be allowed to be represented during due process hearings
by counsel or other advocate selected by the applicant or eligible individual,
as required by §104.3(c) of this title; and
(C)
be given the opportunity to present witnesses during the
hearing and to examine all witnesses and other relevant sources of information
and evidence;
(3)
The impartial hearing officer will-
(A)
Make a decision based on the provisions of the approved
State plan, the Act, Federal vocational rehabilitation regulations, and State
regulations and policies that are consistent with Federal requirements; and
(B)
Provide to the individual or, if appropriate, the individual's
representative and to the State unit a full written report of the findings
and grounds for the decision within 30 days of the completion of the hearing;
and
(4)
The hearing officer's decision is final, except that a
party involved in a hearing may request reconsideration under §104.5
of this title (relating to Motion for Reconsideration), and may bring a civil
action under §104.7 of this title (relating to Civil Action).
(c)
Selection of impartial hearing officers. The impartial
hearing officer for a particular case will be selected-
(1)
From a list of qualified impartial hearing officers maintained
by the Commission. Impartial hearing officers included on the list will be
jointly identified by the State unit and the State Rehabilitation Council;
and
(2)
On a random basis, or by agreement between the TRC Commissioner
and the applicant or eligible individual or, as appropriate, the individual's
representative.
(d)
Source: 34 CFR §361.57(d)-(f).
§104.5.Motion for Reconsideration.
Either party to a hearing may file a motion for reconsideration with
the Office for Administrative Hearings and Subrogation within 20 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. Any response to
the motion for reconsideration must be filed no later than seven days after
service of the motion. The impartial hearing officer shall rule on the motion
for reconsideration no later than 15 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 15 days, the motion is denied as
a matter of law.
§104.6.Finality of the Hearing Officer's Decision.
The decision of the impartial hearing officer under §104.5 of
this title (relating to Motion for Reconsideration) is the final decision
of the Commission. Any other decision under §104.4 of this title (relating
to Mediation and Due Process Hearings) becomes the final decision of the Commission
if a timely motion for reconsideration is not filed.
§104.7.Civil Action.
(a)
Any party who disagrees with the findings and decision
of an impartial hearing officer under §104.4(b) of this title (relating
to Mediation and Due Process Hearings) have a right to bring a civil action
with respect to the matter in dispute. 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.
(b)
In any action brought under this section, the court-
(1)
Receives the records related to the impartial due process
hearing and the records related to the administrative review process, if applicable;
(2)
Hears additional evidence at the request of a party; and
(3)
Basing its decision on the preponderance of the evidence,
grants the relief that the court determines to be appropriate.
§104.8.Time for Hearing.
(a)
A hearing conducted by an impartial hearing officer, selected
in accordance with §104.4(c) of this title (relating to Mediation and
Due Process Hearings), will be held within 60 days of an applicant's or eligible
individual's request for review of a determination made by personnel of TRC
that affects the provision of vocational rehabilitation services to the individual,
unless informal resolution or a mediation agreement is achieved prior to the
60th day or the parties agree to a specific extension of time.
(b)
Source: 34 CFR §361.57(e)(1).
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 June 4, 2003.
TRD-200303371
Sylvia F. Hardman
Deputy Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: July 20, 2003
For further information, please call: (512) 424-4050