Part 4.
EMPLOYEES RETIREMENT SYSTEM OF TEXAS
Chapter 63.
BOARD OF TRUSTEES
34 TAC §63.3
The Employees Retirement System of Texas (ERS) proposes amendments
to 34 Texas Administrative Code §63.3, concerning Election of Trustees
(Nomination Process). The proposed amendments concern the election of trustees,
and propose changes to the guidelines for the petitions that are required
in order for interested parties to qualify themselves as candidates for the
ERS Board of Trustees election.
Section 63.3(2) changes the information required for the petitions needed
to qualify candidates for the ERS Trustee election. The current rule requires
that eligible voters must provide their signature, printed name and full social
security number on the petition in order for the signature to be valid. The
proposed rule requires the signature, printed name, ZIP code and only the
last four digits of the social security number in order for the signature
to be valid. The proposed rule also provides that if a person signs more than
one petition, that person's signature may not be counted on any petition.
Paula A. Jones, General Counsel, has determined for the first five-year
period this amended rule is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
rule as proposed.
Ms. Jones has also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated as a
result of enforcing the rule will be that future trustee elections will be
administered in a more effective manner, and the privacy of persons signing
these petitions will be better protected. There will be no affect on small
businesses. There are no anticipated economic costs to persons who are required
to comply with this rule as proposed.
Comments on the proposed amendments may be submitted to Paula A. Jones,
General Counsel, P.O. Box 13207, Austin, Texas 78711-3207 or you may e-mail
Ms. Jones at paula.jones@ers.state.tx.us. The deadline for receiving comments
is Monday, August 21, 2006, at 10:00 a.m.
The amendments are proposed under the Government Code, §815.003
and §815.102, which provide authorization for the Board to adopt rules
necessary to nominate and elect trustees and to carry out other business of
the Board.
The proposed amendments do not affect any other statutes, articles, or
codes.
§63.3.Election of Trustees (Nomination Process).
Names may be placed in nomination for the office of trustee of the
Employees Retirement System of Texas (system) in the following manner.
(1)
(No change.)
(2)
The signature of each person on a petition must be accompanied
by that person's printed name
, ZIP Code
and
the last four
digits of the person's
social security number. No person may sign a
petition for more than one candidate. To do so will cause the signatures of
the person to be disqualified
on all petitions
.
(3) - (4)
(No change.)
(5)
Reproduced or fax copies of signed petitions
are not
permitted and
will be disqualified.
(6) - (7)
(No change.)
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 July 7, 2006.
TRD-200603639
Paula A. Jones
General Counsel
Employees Retirement System of Texas
Earliest possible date of adoption: August 20, 2006
For further information, please call: (512) 867-7421
34 TAC §§67.1, 67.3, 67.5, 67.7, 67.9, 67.11, 67.13, 67.15, 67.17, 67.19, 67.21, 67.23, 67.25, 67.27, 67.31, 67.33, 67.35, 67.37, 67.39, 67.41, 67.43, 67.45, 67.47, 67.49, 67.51, 67.53, 67.55, 67.57, 67.61, 67.63, 67.65, 67.69, 67.71, 67.73 - 67.75, 67.77, 67.79, 67.81, 67.83, 67.85, 67.87, 67.89, 67.91, 67.93, 67.95, 67.97, 67.99, 67.101, 67.103, 67.105, 67.107 - 67.109
The Employees Retirement System of Texas ("ERS") proposes
amendments to 34 Texas Administrative Code, Chapter 67, concerning Hearings
on Disputed Claims. Proposed new §67.74 and §67.108 and amendments
to §§67.1, 67.3, 67.5, 67.7, 67.9, 67.11, 67.13, 67.15, 67.17, 67.19,
67.21, 67.23, 67.25, 67.27, 67.31, 67.33, 67.35, 67.37, 67.39, 67.41, 67.43,
67.45, 67.47, 67.49, 67.51, 67.53, 67.55, 67.57, 67.61, 67.63, 67.65, 67.69,
67.71, 67.73, 67.75, 67.77, 67.79, 67.81, 67.83, 67.85, 67.87, 67.89, 67.91,
67.93, 67.95, 67.97, 67.99, 67.101, 67.103, 67.105, 67.107, and 67.109 are
proposed in order to update the rules for changes made in the Texas Government
Code ("Government Code") and the Texas Insurance Code ("Insurance Code") regarding
administrative appeals procedures with respect to programs administered by
ERS and for other reasons provided herein. The following describes the proposed
amendments and additions and the reasons for the proposed changes.
1. General Revisions
The amendments to §§67.1, 67.3, 67.5, 67.7, 67.9, 67.11, 67.13,
67.15, 67.17, 67.19, 67.21, 67.23, 67.25, 67.27, 67.31, 67.33, 67.35, 67.37,
67.39, 67.41, 67.43, 67.45, 67.47, 67.49, 67.51, 67.53, 67.55, 67.57, 67.61,
67.63, 67.65, 67.69, 67.71, 67.73, 67.75, 67.77, 67.79, 67.81, 67.83, 67.85,
67.87, 67.89, 67.91, 67.93, 67.95, 67.97, 67.99, 67.101, 67.103, 67.105, 67.107,
and 67.109 include nonsubstantive revisions to capitalize terms defined by §67.3
and §67.23 and/or to reorganize and clarify the meaning of certain terms
and phrases. These proposed amendments and new rules also address confidentiality
issues arising under the Federal Health Insurance Portability and Accountability
Act of 1996 (Pub. L. No. 104 - 191) ("HIPAA") and rules promulgated pursuant
to HIPAA and other laws pertaining to the privacy and confidentiality of medical,
psychiatric and health information. Further, the amendments and additions
to chapter 67 clarify the applicable procedures and rules governing contested
case proceedings before the ERS Board of Trustees ("Board") and the delegation
of the Board's authority to decide appeals from ERS determinations in accordance
with applicable law. The Board's authority to delegate its authority to decide
contested case matters is provided by Government Code §815.511(d) and
Insurance Code §1551.360.
2. §67.1. Purpose and Scope
Section 67.1 is amended to clarify that chapter 67 provides the exclusive
procedural rules in ERS proceedings as provided by Government Code §815.102(b),
and that the rules do not change the powers of the Board or parties to ERS
proceedings. Also, the rules do not waive any immunities available to ERS,
its trustees, officers, employees, agents, administering firms and insurers.
The amendments are consistent with the premise that rules of procedure are
not intended to modify the substantive rights of affected parties. The amendments
also clarify that, as adopted by §67.1(c), the Texas Rules of Civil Procedure
("Tex. R. Civ. P.") apply to ERS proceedings to the extent consistent with
the provisions of chapter 67 or the Texas Administrative Procedure Act (Government
Code §§2001.001 et seq.) ("APA"). The Tex. R. Civ. P. provide various
"gap filling" procedural rules to govern procedural matters not specifically
addressed in chapter 67. However, where the provisions of the APA conflict
with the Tex. R. Civ. P. or chapter 67, the requirements of the APA and chapter
67 control respectively in ERS proceedings.
3. §67.3. Definitions
Section 67.3 is amended to clarify the definition of "Agency" because specific
reference excluding the Texas Workers' Compensation Commission from the definition
is no longer necessary due to recent changes in law.
A new definition for "Authorized Representative" is added to clarify that
attorneys and non-lawyers may represent parties in ERS proceedings.
The definition of "Contested Case" is deleted because the term is subsumed
in the amended definition of "Proceeding."
The definition of "Executive Director" is amended to include her designee
within the scope of the defined term. Pursuant to Government Code §815.511(d)
and Insurance Code §1551.360(b), the Executive Director may delegate
her duties to her designee. The definition is amended to encompass the actions
of the Executive Director's designee as authorized by the above statutes.
The definition of "Order" is clarified to include orders by the Executive
Director or her designee as well as the Board or its designee.
The definition of "Pleading" is amended to clarify the scope and types
of legal documents that fall within the ambit of the definition and thereby
provide additional guidance to Parties in ERS proceedings as to when the procedural
requirements pertaining to Pleadings apply.
The definition of "Proceeding" is amended to clarify the scope of the definition.
Proceedings include, but are not limited to contested case matters. The term
includes other matters as stated in the definition. The amendment provides
additional guidance to parties regarding the application of chapter 67 rules
to all matters within the scope of the defined term.
4. §67.5. Appeal of Denied Claims
Section 67.5 is amended to change the title of the section to "Appeals"
because appeals may include ERS matters other than the denial of claims. The
section is further amended to clarify that appeals relating to ERS actions
apply to not only the denial of benefit claims by ERS, but other matters for
which appeal rights are conferred by statute. Such rights include, but are
not limited to the assessment of sanctions and overpayment obligations as
authorized by Government Code §815.109 and Insurance Code §1551.351.
The amendment also establishes mandatory venue in Austin, Texas for ERS administrative
hearings consistent with Government Code §815.511(f) and Insurance Code §1551.359.
Further, new §67.74 provides telephonic hearing procedures to accommodate
out-of-town parties and witnesses in many circumstances. The new rule codifies
ERS' long time practice regarding allowing telephone participation by parties
and witnesses where appropriate.
Section 67.5(c) incorporates statutory limitations on standing to bring
appeals as provided by Government Code §815.511(a) and Insurance Code §1551.356.
The statutes do not confer standing on any person other than a "person aggrieved"
as stated in §815.511(a) or an "employee, participant, annuitant, or
covered dependent" participating in the Texas Employees Group Benefits Program
established by chapter 1551 of the Insurance Code. Because there is no statutory
standing conferred on the entities expressly excluded from standing under
the proposed rule amendment, Section 67.5(c) clarifies that entities including
healthcare providers and most types of ERS vendors do not have standing to
bring administrative appeals relating to ERS matters.
Section 67.5 adds new subsection (d) to exercise the Board's statutory
authority to delegate to the Executive Director its authority to decide appeals
in ERS proceedings. The delegation of the Board's authority will promote timely,
efficient and fair administrative decisions because the Executive Director
will be able to decide such cases more frequently than the Board, and the
Executive Director will have the benefit of the same record that is available
to the Board at the time the final administrative decision is being made.
Consequently, ERS Appellants will be able to obtain final agency decisions
more quickly than under past practice in which such decisions were made during
regularly scheduled Board meetings. In addition, the Executive Director will
have discretion to refer particular cases to the Board for final determination
when appropriate. Such referrals may be warranted when an appeal presents
a previously unaddressed policy issue or other unusual circumstance justifying
the Board's consideration.
Section 67.5(d) amendments clarify that the Executive Director may delegate
her duties in either a particular matter or more generally. Government Code §815.202(f)
grants the authority for the Executive Director to delegate her duties to
other ERS employees.
5. §67.7. Filing and Service of Documents and Pleadings
Proposed amendments to §67.7(a) clarify that other rules in chapter
67 may require documents to be filed with someone other than the Executive
Director. During the period in which a hearing examiner ("Examiner") has jurisdiction
over a proceeding, pleadings and other documents are to be served on the Examiner
rather than the Executive Director. The amendments to §67.7(b) clarifies
existing practice and procedure that an Examiner loses jurisdiction after
she issues a final proposal for decision. At that point, jurisdiction to make
the final administrative decision in the appeal is conferred on the Board
or its designee. Because of the transfer of jurisdiction, it is appropriate
that all pleadings and documents be filed with the Executive Director because
the Examiner no longer has any authority to take action in response to such
filings.
The amendments to §67.7(d) clarify that service of documents and pleadings
may be made to a party or to the party's authorized representative if one
has been retained. This clarification is consistent with customary practice
and procedure in litigation where service is to be made on a party's attorney
if the party is represented.
Section 67.7(f) is amended to cross-reference new §67.108 which provides
procedures for sanctions. Failure to serve opposing parties may warrant the
imposition of sanctions, especially if the failure is intentional. Proper
service is fundamental to providing fair and reasonable notice in contested
case proceedings and the requirement should be properly enforced, if necessary,
through appropriate sanctions.
6. §67.9. Computation of Time
Section 67.9(b) is amended to reflect that extensions of time may be granted
by an agreement of the parties as well as by a motion showing good cause.
If the parties agree to an extension, no harm will likely result from an order
granting such a request. The proposed change recognizes and codifies the common
practice of granting an agreed request for an extension of time in a contested
case.
7. §67.13. Conduct and Decorum
Proposed amendments to §67.13 identify the applicable ethics standards
that are observed in litigation and administrative proceedings generally,
as well as in ERS proceedings, and they also clarify to whom the standards
of conduct apply. The Texas Lawyers Creed and the Texas Disciplinary Rules
of Professional Conduct are referenced with respect to the current ethical
standards applicable to authorized representatives. They are appropriate standards
because they provide the core basis for governing the conduct of lawyers in
Texas. Reference to the "Code of Professional Responsibility" is deleted because
it has been replaced by the "Texas Disciplinary Rules of Professional Conduct."
Reference to the "Canons of Judicial Ethics" is deleted because the canons
provide ethical standards for judges rather than lawyers. Because not all
authorized representatives are lawyers, the rule is further clarified to reflect
that it does not permit the unauthorized practice of law.
Section 67.13(b) is amended to reflect that an Examiner may not assess
monetary payments for violations of the rule. The proposed change reflects
that no statute authorizes the payment of trust funds for such purposes. As
a matter of fairness, the change would apply equally to both ERS and other
parties. Since state law does not authorize ERS to pay sanctions (payment
of which could adversely impact the trust funds for which ERS is responsible)
other parties should also not be subject to such penalties.
8. §67.21. Intervention
Proposed amendments to §67.21 change the deadline for filing a motion
to intervene from fifteen to thirty days prior to the hearing on the merits
or the Board's or its designee's consideration of an appeal. The change gives
parties, the Examiner, and the final agency decision maker, additional time
to respond to a motion to intervene and thereby avoid disruption of the proceedings
that might result from a last minute attempt to intervene. The proposed change
also clarifies that the time requirement applies to an attempt to intervene
after the hearing on the merits but before the matter is submitted pursuant
to §67.87 (relating to submission of appeals for a final administrative
decision).
9. §67.27. Form and Content of Pleadings
The proposed amendments to §67.27(d) clarify that at various points
in an ERS proceeding, the Examiner, Executive Director, the Board or its designee
have authority to issue orders, and each pleading should be addressed to the
person or entity with jurisdiction to act on the request. For example, under §67.43(d),
the Executive Director has sole authority to decide a motion to reinstate
an appeal that has been dismissed for a violation of the rule. Similarly,
the Board's designee has the discretion to determine whether to grant a request
for oral argument under §67.87. To avoid confusion, pleadings should
be addressed to the person or entity with jurisdiction to rule on the party's
request.
The proposed amendments to §67.27(d) also clarify that pleadings should
include references to supporting authorities. Citation of authorities provides
guidance to the parties and the decision maker regarding the legal basis for
the relief requested.
10. §67.31. Written Motions
The proposed amendments to §67.31 provide additional guidance as to
whom motions should be addressed. By directing parties to file motions with
the person or agency authorized to rule on the motion, the amended rule helps
ensure that requests for relief are received by the appropriate official or
entity in a timely manner. The changes also clarify the general rule that
a movant must give prior notice of at least three business days before a motion
may be granted. The proposed change (as well as similar changes found elsewhere
in the chapter) makes clear to parties that they may not minimize the amount
of effective notice by filing a motion on a Friday with the expectation that
Saturday and Sunday (and possibly a legal holiday) may count toward the prior
notice requirement.
The proposed amendments also expressly state that the notice requirements
of the rule may be excused on a showing of good cause. The exception recognizes
that from time to time, unexpected events or emergencies may make problematic
the giving of three business days prior notice before a motion is ruled upon.
11. §67.33. Amended Pleadings
Proposed amendments to §67.33 will establish a thirty day deadline
for filing an amended pleading without leave to amend. The proposed revisions
also provide that a motion for leave to amend pleadings must be filed no later
than three business days prior to hearing. The changes are designed to assure
that parties receive reasonable notice of amended pleadings so that they have
a meaningful opportunity to respond.
12. §67.35. Incorporation of Board Records by Reference
Section 67.35 is amended to change the title of the section to "Incorporation
of Board or ERS Records by Reference." The section is further amended to clarify
that an adoption of a document by reference in a pleading does not relieve
parties of their burden of proof to produce admissible evidence to support
their claims.
13. §67.39. Notice and Service
Proposed amendments to §67.39 clarify the procedures in an appeal
for requesting additional issues that were not included in the initial notice
of hearing issued by ERS and served on the parties. The proposed revised rule
requires that such a request be served not less than thirty days prior to
hearing as compared to ten days under the current rule. Also, the amended
rule specifies that a response to a motion for additional issues must be filed
and served within fourteen days from the date the motion is served.
The proposed amendments provide an orderly procedure that avoids undue
surprise resulting from an attempt to interject new issues on appeal at the
eve of trial. Occasionally in ERS proceedings, a party may seek to interject
issues that may be irrelevant, prejudicial or simply not within ERS' or the
Examiner's jurisdiction to consider. Therefore, the procedure also helps ensure
that adequate time is allowed to analyze a request for additional issues and
to accept only those matters that are within ERS' or the Examiner's jurisdiction
and that are material and relevant. The proposed amendments also provide seven
as opposed to five days notice to the parties of the additional issues to
be decided. The additional two days gives the parties extra time to respond
to the inclusion of new issues. For example, an opposing party may request
a continuance where the inclusion of new issues provides good cause for additional
discovery or other actions related to the new matters.
14. §67.41. Contents of Notice
Section 67.41 is amended to change the title of the section to "Contents
of Initial Notice and Amendments." The section is further amended to revise
the procedure for amending the initial notice of hearing in an ERS proceeding.
At times, the information available to ERS is not sufficient to state all
appeal issues in detail at the outset of a contested case. For example, in
an overpayment situation ERS may not have complete information regarding the
amounts owed by an appellant, although a determination may have been made
that the appellant received some amount of overpayments. The revised procedure
permits the Executive Director to file an amended or supplemental notice of
the issues to provide a more detailed statement once additional information
is received.
The proposed amendments also clarify that parties may request another party
to file a more definite statement of the issues when appropriate. The deadlines
for making and responding to such a request are unchanged.
15. §67.43. Dismissal without Hearing
Proposed amendments to §67.43(b)(3) will clarify that an appeal may
be dismissed for failure to comply with an order from the Executive Director
as well as from an Examiner. This change reflects the Executive Director's
authority to issue certain orders both before and after the Examiner has jurisdiction
over an ERS proceeding.
Proposed amendments to §67.43(d) reflect the current rule that all
dismissals under the rule are mandatory rather than conditional. The amendments
also provide a thirty day deadline for filing a motion to reinstate with the
Executive Director after a dismissal. The thirty days begins from the date
an order of dismissal is served. The amendments also clarify the existing
practice and procedure that the Executive Director has sole discretion to
permit a reinstatement based on a showing of good cause, and that her decision
constitutes final agency action.
The amendments promote an orderly process for dealing with failures to
prosecute appeals and encourage diligence by the parties in seeking administrative
remedies which is consistent with the Tex. R. Civ. P. 165a. Also, requiring
mandatory dismissal subject to reinstatement for good cause helps avoid delays
to appellants that otherwise may result from the dilatory practices of other
parties. For example, when an appellant fails to appear for hearing without
good cause and afterward requests another hearing, his request is contrary
to the interests of other parties in other appeals to have their day in court.
In order to avoid this inequitable result and to conserve ERS' trust fund
resources, the rule requires a mandatory dismissal subject to reinstatement
for good cause. This approach parallels common procedural practice in state
courts.
16. §67.45. Prehearing Conference
Section 67.45(b) is amended to specify that a motion or notice relating
to a prehearing conference shall describe the subject matter of the conference
with reasonable specificity. The amendment is proposed so that parties are
assured reasonable notice of the subject(s) to be addressed at a prehearing
conference. Parties will be better prepared to address issues raised in a
prehearing conference if they have prior notice of the subject matter.
17. §67.47. Postponements or Continuances
Proposed amendments to §67.47 clarify that opposed motions for continuance
must be supported by competent pleading and evidence showing good cause for
the request. Tex. R. Civ. P. 251 - 253 (relating to motions for continuance)
are expressly incorporated into the rule to make clear that the procedural
requirements of those rules apply to opposed motions for continuance filed
in ERS proceedings. The proposed amendments also clarify the requirements
for showing good cause for a late filed motion for continuance.
The amendments to the rule emphasize the need to show good cause for an
opposed continuance request in order to deter parties from requesting multiple
continuances without showing substantial need or justification for the postponements.
Multiple unreasonable continuances delay ERS proceedings and cause parties
to incur additional unnecessary expenditure of time and resources in preparing
and re-preparing for a hearing that is repeatedly continued.
18. §67.53. Presiding Officer
Proposed amendments to §67.53 include a new subsection (b) which identifies
the Texas Code of Judicial Conduct as the source of ethical standards governing
the conduct of Examiners in ERS proceedings. The proposed amendments also
specify that Examiners shall conduct ERS proceedings in a fair and impartial
manner, and they shall refrain from providing legal advice or guidance to
any of the parties, other than with respect to minor procedural matters. Such
actions are not consistent with the Examiner's proper function of being an
impartial presiding officer, and they are not appropriate in ERS proceedings
and are inconsistent with the statutory requirements with which Examiners
are obligated to comply when conducting such proceedings.
19. §67.55. Order of Procedure
Proposed amendments to §67.55 clarify the procedures at hearings in
ERS proceedings. Subsection (b) is modified to conform ERS' rule concerning
burden of proof with its statutes addressing the matter: Government Code §815.511(c)
and Insurance Code §1551.351(d). Each of the statutes specifies that
the appellant in an ERS proceeding has the burden of proof on all issues,
including issues in the nature of an affirmative defense.
The proposed amendments to §67.55(c) clarify the limits on the nature
and scope of questions an Examiner may ask a witness. The proposed rule amendment
discourages questions designed to assist parties in meeting their burden of
proof or in rebutting evidence through cross-examination. Clarifying questions
are appropriate as necessary to ensure that the record provides an accurate
and complete account of the witnesses' testimony.
Revised §67.55(d) expressly states the procedure for invoking "The
Rule" as provided in Tex, R. Civ. P. 267(a). The purpose of The Rule is to
ensure that a witness' testimony is not modified in response to the testimony
of another witness. Accordingly, when The Rule is invoked, witnesses (other
than the parties and their authorized representatives) are asked to wait outside
the hearing room until they are called to testify. They are also instructed
not to discuss their testimony with anyone prior to being called to the stand.
This procedure helps ensure that testimony is truthful and not tainted by
what a witness might otherwise hear from other witnesses. The proposed amendment
makes clear that the procedure may be invoked in ERS proceedings as provided
by Tex. R. Civ. P. 267(a). The proposed amendments also provide for sanctions
for a violation of The Rule. The sanctions provision provides a deterrent
for witnesses and others who might be inclined to violate The Rule. Sanctions
also provide a reasonable remedy when a party is prejudiced by a violation.
The sanctions allowed are those described in §67.13, and do not include
any monetary penalties. See the discussion regarding the proposed amendments
to §67.13.
The proposed amendment to §67.55(g) revises ERS' rule regarding submission
of additional evidence after a hearing on the merits of an appeal. The proposed
change would require a party to move for the inclusion of additional evidence
upon a showing of good cause. The movant would have to show that the new evidence
was not reasonably known or knowable to him at the time of the hearing, or
that another party had failed to provide discovery that would have disclosed
the evidence.
The proposed amendments will help ensure that each party acts diligently
and is prepared to make his case at the hearing on the merits. Conversely,
the rule discourages a somewhat common practice in ERS proceedings in which
a party uses the hearing to find out what he needs to prove and then asks
that the hearing be continued while he seeks additional evidence to fill in
any "gaps" in his proof. Through this tactic, a party may receive multiple
opportunities to obtain and tailor his evidence in response to the other side's
case. This practice is inefficient and costly in resources, sometimes causing
lengthy delays in ERS appeals. Also, it is contrary to the customary adversarial
process whereby parties have one opportunity after discovery and investigation
to present their evidence at a trial on the merits. On the other hand, the
good cause exception allows a diligent party who learns of new evidence at
or after a hearing to get the evidence into the record. Finally, limiting
the ability to ask for additional evidence makes the amendment consistent
with state court and proper administrative practice. See also the discussion
concerning proposed amendments to §67.53 and §67.55(c).
20. §67.61. Offer of Proof
The proposed amendments to §67.61 clarify the procedure for Examiners
to ask clarifying questions in connection with an offer of proof. An offer
of proof is a procedure to memorialize evidence that has been offered but
not admitted into evidence. A party making an offer of proof shows what the
evidence would have been if it had been admitted. The offer facilitates review
of the Examiner's ruling denying admission of the evidence. Section 67.61(b)
is clarified to ensure that clarifying questions concerning an offer of proof
are confined to the limits described in the proposed amendments to §67.55(b).
See the discussion of the proposed amendments to §67.55(b) regarding
clarifying questions.
21. §67.65. The Record
The proposed amendments to §67.65(b) clarify the procedures used when
evidence is offered after the record is closed. The record defines and limits
the evidence that the Board or its designee may consider in deciding an ERS
appeal. Under the current rule, new evidence may not be admitted absent a
showing of good cause as to why the evidence could not reasonably have been
presented at the hearing on the merits of the appeal. The proposed amendment
emphasizes that newly offered evidence must also be relevant and material,
and that the opposing party must have the opportunity to conduct cross-examination
and offer rebuttal evidence in response to the new evidence.
The opportunity to challenge an opponent's evidence is a fundamental tenet
of the adversarial process. Rebuttal evidence and cross-examination are core
tools used in contested cases to test the truthfulness, reliability and accuracy
of evidence. If newly discovered evidence is admitted into evidence after
the record closes, opposing parties must be given the same opportunity to
test the evidence as they would have if the evidence were admitted at a hearing
on the merits.
The proposed amendments also clarify that the Executive Director may be
requested to consider new evidence after the record closes and the Examiner
no longer has jurisdiction over the appeal. If a party requests admission
of newly discovered evidence after an Examiner issues a final proposal for
decision, the Executive Director will be responsible for ruling on the request.
In addition, when a party offers evidence in connection with a motion to reinstate
following a dismissal under §67.43, the Executive Director must decide
whether or not to admit the evidence offered.
22. §67.69. Rules of Evidence
The proposed addition of §67.69(b) conforms the rule to current statutory
and Board policy. The proposed addition requires that opinion evidence of
a medical condition or cause must be based on reasonable medical probability
and be supported by objective medical evidence. The proposed amendment also
clarifies that subjective complaints of illness that are not corroborated
by objective medical evidence may not support a finding of fact relating to
an allegation concerning medical issues.
The proposed addition incorporates the policy stated in Government Code §814.203
which mandates that the ERS Medical Board's medical evaluation of ERS disability
retirement claims be supported by "substantial, objective, medical evidence."
Also, the proposed amendment reflects long-standing Board policy that findings
of fact relating to medical issues must be supported by objective medical
evidence. See Appeal of Sharon House, SOAH Docket No. 327-03-3111 (February
2005). In discussing its decision in that appeal, the Board noted that it
had long required that findings concerning medical condition or causation
must be supported by objective medical evidence. See e.g. The Appeal of Gwendolyn
Woodard, SOAH Docket No. 327-99-1695 (April, 2000) (ERS Board Decision denying
an appeal for benefits where there were no objective clinical findings that
the appellant was unable to engage in any sedentary occupation). The Board
stated that an award of disability retirement benefits that is not based on
objective medical evidence does not provide reasonable assurance that a person
claiming such benefits is truly disabled. If only subjective complaints of
pain were sufficient to support such a claim, the trust fund would be subject
to unwarranted liabilities by those members willing to overstate or falsely
represent that they are suffering from disabling pain. In addition, some treating
physicians could be tempted to assist patients who might make such improper
claims because the award of disability benefits includes insurance to cover
the doctor's further treatment of the patient. Also, requiring that findings
on medical issues be supported by objective medical evidence is essential
to protect the ERS trust fund and the participants in the trust fund from
unmerited claims based on sincere, but speculative opinions by physicians
and claimants. Accordingly, to ensure that disability retirement claims are
awarded properly, the medical aspects of the claim must be supported by objective
medical evidence. The Board concluded that because certain prior proposed
finding of fact in House were not supported by objective medical evidence,
and were in fact controverted by the objective medical evidence, they were
violative of the Board's policy.
The proposed amendment is also consistent with current Texas case law requiring
that expert opinions have a reliable scientific basis. See e.g. Merrell Dow
Pharmaceuticals v. Havner, 953 S.W.2d 706, 714 (Tex. 1997) (stating that if
the foundational data underlying opinion testimony are unreliable, an expert
will not be permitted to base an opinion on that data because any opinion
drawn from that data is likewise unreliable; and that if an expert's scientific
testimony is unreliable, it is not evidence).
23. §67.73. Documentary Evidence
The proposed addition of §67.73(c) clarifies the procedures for protecting
confidential medical, psychiatric and health information from public disclosure
through the contested case process. Many ERS proceedings involve medical information
that is protected from disclosure by law. See e.g. HIPAA and other laws pertaining
to the privacy and confidentiality of medical and health information. Examples
of such sensitive information could include evidence of adolescent drug abuse
or eating disorders, sexually transmitted diseases and psychiatric disorders.
In order to protect the privacy of appellants from the disclosure of such
confidential and legally protected information, §67.73(c) provides a
"sealing" procedure to protect against the disclosure of the information to
persons other than the parties (including their authorized representatives
and staff), the Examiner, the ERS Executive Director, the Board and its designee.
In ERS proceedings, evidence that is not sealed is generally considered open
for public inspection.
The proposed amendment provides exceptions to sealing for evidence showing
fraud, other ERS policy violations warranting disciplinary action under ERS'
jurisdiction, and a law enforcement exclusion. The application of Tex. R.
Civ. P. 76a (relating to procedures for sealing "court documents") is expressly
excluded. The requirements of Rule 76a predate HIPAA and appear inconsistent
with the regulatory mandates and policy reflected therein. Further, the requirements
of public notice, participation and hearing are not consistent with ERS rules
and statutes limiting standing and making ERS member and participant information
confidential and not subject to disclosure except in certain specifically
enumerated circumstances. See e. g. Insurance Code §1551.356 (concerning
standing to appeal in ERS proceedings); and Government Code §815.503
and Insurance Code §1551.063 (relating to the confidentiality of records).
Also, the jurisdiction and remedial provisions of Rule 76a are not incorporated
or referenced into the exclusive jurisdiction and remedies applicable to ERS
proceedings. See Government Code §815.511(a) and (d) and Insurance Code §1551.351(d)
(relating to exclusive jurisdiction in ERS proceedings) and Government Code §815.513
and Insurance Code §1551.014 (pertaining to exclusive remedies). Also,
the procedures described in Rule 76a are inconsistent with the doctrine of
exhaustion of administrative remedies. In addition, Rule 76a may only apply
to ERS proceedings if it is expressly adopted by the Board pursuant to its
rulemaking authority. Because the rule imposes excessive procedural burdens
on the parties to ERS proceedings that are not consistent with the policies,
plans, intent and purposes described above as well as other statutes governing
ERS proceedings, the provisions of Rule 76a should not be adopted.
24. New §67.74. Telephonic Proceedings
Proposed new §67.74 is added to formalize ERS procedure regarding
participation by telephone of appellants and witnesses. The proposed addition
adopts substantially, the State Office of Administrative Hearings' rule concerning
the same subject, 1 Texas Administrative Code §155.45. The proposed provision
describes how a party may request a telephonic hearing and the exceptions
and limitations applicable to such requests.
The option to participate by telephone in ERS proceedings may substantially
relieve the burden on out-of-town appellants and witnesses who may be inconvenienced
if required to travel to Austin for a hearing. However, the proposed rule
also recognizes that participation by telephone may not be appropriate when
it is important for the Examiner and the parties to observe a witness' demeanor
while testifying. The proposed rule also addresses the importance of properly
identifying witnesses who testify by telephone, protecting the record against
coached testimony, and keeping witnesses separated. See the discussion regarding
proposed amendments to §67.55.
25. §67.77. Introduction of Exhibits
Proposed amendments to §67.77(d) clarify ERS' procedures for filing
and admission of late exhibits. Acceptance and admission of such exhibits
would only be permitted upon a showing of good cause for the failure to offer
the exhibit at the hearing. The reasons for this proposed amendment are as
stated in the analysis regarding the proposed amendments to §67.55(g).
26. §67.81. Examiner's Report and Proposal for Decision
Section 67.81 is amended to change the title of the section to "Examiner's
Proposal for Decision." The section is further amended primarily for purposes
of reorganization. In addition, references in the section to the Examiner's
"report," as well as similar changes proposed in other parts of chapter 67,
clarify the scope and nature of what the Examiner shall prepare for consideration
by the Board and its designee. Preparation of a "report" that is separate
and distinct from the proposal for decision is not consistent with the requirements
of §2001.062(d) of the APA nor with Examiners' practice in ERS proceedings.
Also, the substance of a "report" is included in the analysis section of a
proposal for decision which summarizes the issues, positions of the party,
the evidence and the applicable law concerning the appeal.
Proposed changes to §67.81(b) clarify the point at which jurisdiction
over an appeal transfers from the Examiner to the Executive Director, Board
and its Designee. The clarification conforms the rule to existing law and
practice recognizing that the Examiner's jurisdiction ends with the service
of his final proposal for decision after considering exceptions and replies
to exceptions filed, if any. Also, the clarification will help avoid confusion
by parties in ERS proceedings regarding the point at which jurisdiction is
transferred from the Examiner back to ERS.
27. §67.83. Filing of Exceptions and Replies
Proposed amendments to §67.83(a) specify that an Examiner should file
a response to exceptions to a proposal for decision and replies to exceptions,
if any, within thirty days from the last timely filing of such pleadings.
The proposed change provides additional guidance to Examiners as to when
their final proposal for decision should be filed with ERS. Also, the change
helps insure that the Examiner's response will be filed in a timely manner
consistent with the Examiner's need to consider carefully any exceptions and
replies filed in connection with a proposal for decision.
28. §67.87. Oral Argument before the Board
Section 67.87 is amended to change the title of the section to "Submission
of Appeals to the Board's Designee." The section is further amended to provide
the procedures for the Board designee's review and final decision of ERS contested
cases and other proceedings pursuant to the Board's authority to delegate
that power as authorized by Government Code §815.511(d) and Insurance
Code §1551.360 and as provided in the proposed amendment to §67.5(d).
The amendments provide that the Board's designee will decide contested cases
and other proceedings by submission of the record unless good cause is shown
for oral argument.
As previously discussed in the analysis regarding the proposed amendments
to §67.5(d), delegation of the Board's authority to decide contested
cases and other proceedings provides the means to decide cases expeditiously
and efficiently. The Board's designee will be available to consider contested
cases on a more frequent basis than with respect to the current practice of
deciding cases at certain regularly scheduled Board meetings. Under the proposed
delegation procedure, the time for deciding cases may be shortened by an average
of three to four months. Because ERS appellants often are in immediate desire
of the contested benefits, shortening the time for making final decisions
on appeals will directly serve their interests.
The proposed amendments also provide the parties with the option to submit
written arguments to the designee. This procedure is designed to provide the
parties an opportunity to address any final arguments and comments to the
final agency decision maker before the decision is made. Under current practice,
parties are afforded an opportunity to address the Board before it makes its
final decision on an appeal. The written argument procedure provides a corollary
process with respect to cases decided by submission to the Board's designee.
All written arguments must be limited to matters that are within the record.
The proposed amendments favor the submission process over oral presentations
because the former procedure fosters a more timely and efficient disposition
of appeals. However, where a contested case presents novel or complicated
issues warranting oral arguments, questions and discussion between the Board's
designee and the parties, the proposed rule changes permit the option of allowing
oral argument on a showing of good cause.
29. §67.89. Presentation of Contested Cases to the Board
Section 67.89 is amended to change the title of the section to "Presentation
of Contested Cases to the Board or its Designee." The section is further amended
to clarify that the procedures for oral argument to the Board shall also apply
to oral arguments to the Board's designee when such proceedings are permitted.
30. §67.91. Form, Content and Service of Orders
The proposed amendments to §67.91(b) add additional criteria for modifying
or deleting proposed findings of fact and conclusions of law. Government Code §815.511(d)
and Insurance Code §1551.357 authorize the Board to modify, refuse to
accept, or delete any proposed finding of fact or conclusion of law contained
in a proposal for decision, or make alternative findings of fact or conclusions
of law. These statutes also specifically authorize the Board to delegate its
authority to make such changes to its designee. The Board or its designee
must state the reasons for such changes and may adopt rules relating to this
procedure.
The additional criteria for adding, modifying or deleting proposed findings
of fact and conclusions of law would apply when a proposed finding or conclusion
is:
* Based on a medical opinion that is not supported by objective medical
evidence, or is not based on reasonable medical probability;
* Confusing, incomplete or misleading; or
* Immaterial or irrelevant to the issues.
The first criteria is added to conform to the Board's policy and applicable
law that findings of fact and conclusions of law relating to medical issues
must be based on objective medical evidence and otherwise reliable. See the
discussion concerning proposed amendments to §67.69. The remaining additional
criteria are appropriate to correct proposed findings of fact that are unclear,
internally inconsistent, not fully articulated, may result in a misunderstanding
of the facts and issues or interject matters that are extraneous to the issues
on appeal. Correction of such errors helps assure that ERS appeals are decided
correctly based on the facts and law, and that the reasons for the decision
are articulated in a concise, accurate and understandable manner.
The proposed amendments also clarify that the procedures stated in the
rule apply to the Board's designee as well as the Board. In addition, the
changes state that correction of nonsubstantive typographical errors do not
need to be explained because the need is evident on the face of the document
and does not affect the legal consequences of the proposed finding of fact
or conclusion of law.
31. §67.93. Administrative Finality
The proposed amendments to §67.93 clarify when an administrative decision
in a contested case becomes final. In addition to the criteria included in
the current rule, the amendment references the adoption by the Board, or its
designee, of a final order and the failure to file a motion for rehearing
within the time prescribed by §67.97. This addition clarifies that an
order will become final when no motion for rehearing is timely filed.
The proposed addition of §67.93(b) clarifies that the requirement
for filing a motion for rehearing applies to any decision in ERS proceedings
that constitutes final agency action. For example, the denial of a motion
to reinstate under §67.43(d) constitutes final agency action subject
to a motion for rehearing. The failure to file a motion for rehearing may
constitute a failure to exhaust administrative remedies.
The proposed change conforms to existing law requiring the filing of a
motion for rehearing as a prerequisite for judicial review. APA §2001.145(a).
The purpose of a motion for rehearing is to apprise the agency of the error
claimed and allow the agency an opportunity to correct the error. Suburban
Util. Corp. v. Public Util. Comm'n, 652 S.W.2d 358, 364-365 (Tex. 1983); BFI
Waste Sys. v. Martinez Environmental Group., 93 S.W.3d 570, 578 (Tex. App.-Austin
2002, pet. denied). "The timely filing of a motion for rehearing is jurisdictional."
BFI Waste Sys., 93 S.W.3d at 578.
32. §67.101. Ex Parte Communications
The proposed amendments to §67.101 include the addition of subsection
(c) to clarify that the prohibition against ex parte communications does not
include communications between the Executive Director, the Board or its designee
and their staff, including, but not limited to the ERS general counsel and
staff experts. Such communications are permitted by APA §2001.061(c).
33. §67.107. Discovery Generally
The proposed amendments to §67.107 include a reference to Tex. R.
Civ. P. 190.2 as the basis for defining certain time lines and limitations
concerning discovery. Those limitations include a discovery completion deadline
of thirty days before trial, a six hour limit per side on deposition questioning
and a limit of 25 interrogatories per responding party (except for interrogatories
made for the purpose of authenticating documents).
The discovery deadlines and limitations are generally appropriate for ERS
proceedings because they provide a reasonable amount of discovery for each
party, and the limits and deadlines may be modified by agreement as provided
by rule 190.2.
34. New §67.108. Discovery Sanctions
A new proposed §67.108 is added to specify that the provisions of
Tex. R. Civ. P. 215 (concerning sanctions) apply to the extent that they are
consistent with the APA and do not involve monetary penalties. See the discussion
of the proposed amendments to §67.13 for the reasons against allowing
monetary sanctions in ERS proceedings. The proposed amendments also specify
that an award of sanctions is subject to review by the Board or its designee,
except as otherwise provided by APA §2001.201 and §2001.202 (concerning
judicial enforcement of subpoenas, final orders, decisions and rules). Reservation
to the Board and its designee of the authority to review sanctions orders
is consistent with their statutory authority and jurisdiction over ERS contested
case matters is discussed above.
35. §67.109. Witness Fees
The proposed amendments to §67.109 include the express addition of
the requirement that the witness fee for a retained expert shall be paid by
the party who retained the witness. The proposed amendment comports with the
requirement of Tex. R. Civ. P. 195.7 which imposes the costs associated with
deposing a retained expert on the party who retained him.
Paula A. Jones, General Counsel, has determined for the first five-year
period these proposed new and amended rules are in effect there will be no
fiscal implications for state or local government as a result of enforcing
or administering the rules as proposed.
Ms. Jones has also determined that for each year of the first five years
these proposed new and amended rules are in effect, the anticipated public
benefits resulting from them include enhanced fairness, clarity, effectiveness
and efficiency of the procedures governing ERS contested case proceedings
while protecting private medical and health information from undue disclosure
in accordance with applicable law. There will be no affect on small businesses.
There are no anticipated economic costs to persons who are required to comply
with the rules as proposed.
Comments on the proposed new and amended rules may be submitted to Paula
A. Jones, General Counsel, P.O. Box 13207, Austin, Texas 78711-3207, or you
may e-mail her at paula.jones@ers.state.tx.us. The deadline for receiving
comments is Monday, August 21, 2006, at 10:00 a.m.
The amendments and new rules are proposed under the Government
Code, §815.102 which provides authorization for the ERS Board of Trustees
to adopt rules for hearings on contested cases or disputed claims. In addition,
Insurance Code, §1551.052 authorizes the Board of Trustees to adopt rules
consistent with the chapter as it considers necessary to implement the chapter
and its purposes.
The proposed new and amended rules apply to all proceedings involving programs
administered by ERS, including Government Code Title 8, Insurance Code Chapters
1551 and 1552, Government Code Chapters 615 and 609 and do not affect any
other statutes, articles, or codes.
§67.1.Purpose and Scope.
(a)
Purpose of chapter. The purpose of this chapter is to provide
an orderly and efficient system of procedure before the Board of Trustees
("Board")
of the Employees Retirement System of Texas
("ERS") or
its designee
to facilitate the administration of the laws of the state
within its jurisdiction. This
chapter
[
(b)
Scope of chapter. This chapter shall
exclusively
govern
the procedure for [
(c)
Texas Rules of Civil Procedure. Proceedings under this
chapter shall be conducted in accordance with the Texas Rules of Civil Procedure
(including future amendments thereto), except where such rules conflict with
a provision of this chapter
or the Texas Administrative Procedure Act
(Government Code §§2001.001 et seq.) ("APA")
, in which event
the provision of this chapter
or the APA
shall control.
§67.3.Definitions.
The following words and terms, when used in this
chapter
[
(1)
Agency--Any state board, commission, department, or officer
having statewide jurisdiction (other than an agency wholly financed by federal
funds, the
Legislature
[
(2)
Authorized Representative--An
attorney or other person legally authorized to represent a Party pursuant
to §67.23 of this chapter (relating to representative appearances).
(3)
[
[
(4)
Examiner (hearings examiner)--Any person appointed by the
Executive Director
[
(5)
Executive Director--The
Executive Director
[
(6)
Insured--A
Person
[
(7)
Member--A
Person
[
(8)
Order--The whole or a part of the final disposition, whether
affirmative, negative, injunctive, or declaratory in form, of the
Executive
Director, Board or its designee
[
(9)
Party--Each
Person or Agency
[
(10)
Person--Any natural person, partnership,
company,
corporation, association, governmental subdivision, or public or private
organization of any character other than an
Agency
[
(11)
Pleading--A written
concise statement
[
(12)
Proceeding--Any hearing, investigation, inquiry,
determination
or other fact-finding or decision-making procedure, including
, but not limited to
[
(13)
Trustee--One of the
duly
elected or appointed
members of the
Board
[
§67.5. Appeals [
(a)
When the
Executive Director
[
(b)
The
Executive Director
[
(c)
Standing.
Unless otherwise provided by law,
standing to pursue an administrative appeal under this
chapter
[
(d)
In accordance with §815.511(d),
Government Code and §1551.360, Insurance Code, the Board delegates its
authority to determine all Proceedings within its jurisdiction to the Executive
Director. In her discretion, the Executive Director may request the Board
to decide a particular Proceeding when appropriate.
(e)
[
§67.7.Filing and Service of Documents and Pleadings.
(a)
Except as otherwise provided in these rules,
[
(b)
Unless otherwise provided by applicable law or rule, in
any
Proceeding
[
(c)
Copies of any documents or
Pleadings
[
(d)
Unless otherwise stated, all documents and
Pleadings
[
(1)
hand-delivery;
(2)
certified or registered mail to the
Party's or the
Party's Authorized Representative's
[
(3)
facsimile to the
Party's or the Party's Authorized
Representative's
[
(4)
any other manner as the
Executive Director or Examiner
[
(e)
Service by mail shall be complete when the
Pleading
[
(f)
The
Party or Authorized Representative
[
(g)
Documents and
Pleadings
[
§67.9.Computation of Time.
(a)
Counting days. In computing any period of time prescribed
or allowed by this
chapter
[
(b)
Extensions. Unless otherwise provided by statute, the time
for filing any of the documents
or Pleadings
mentioned in §67.7
of this
chapter
[
(1)
In the case of filings which initiate a
Proceeding
[
(2)
In the case of filings made in a
Proceeding
[
§67.11.Agreements To Be in Writing.
No stipulation or agreement between the
Parties or their Authorized
Representatives
[
§67.13.Conduct and Decorum.
(a)
Comportment. Every
Party
[
(b)
Compliance. Upon violation of subsection (a) of this section
,
any
Party
[
§67.15.Classification of Parties.
Parties to
Proceedings
[
§67.17.Parties Defined.
The following words and terms when used in this
chapter
[
(1)
Administering Firm--Any firm designated by the
Board
[
(2)
Appellant or
Claimant
[
(3)
Insurer--
Any
[
(4)
Intervenor--A
Party
[
§67.19.Alignment of Parties.
Parties may be aligned according to the nature of the
Proceeding
[
§67.21.Intervention.
(a)
Any
Person or Agency with standing and who is
[
(b)
Any
Person or Agency with standing and who is
[
(c)
All motions to intervene shall include any relevant, material,
and proper testimony and evidence bearing upon the issues involved in the
particular
Proceeding
[
(d)
The
Executive Director
[
§67.23.Representative Appearances.
(a)
To the extent permitted by law, any
Party
[
(b)
Each
Party
[
(c)
All
Parties and their Authorized Representatives
[
§67.25.Classification of Pleadings.
Pleadings filed with the
Executive Director
[
§67.27.Form and Content of Pleadings.
(a)
Typewritten or printed. Pleadings [
(b)
Content. Pleadings shall state their object, shall contain
a concise statement of the supporting facts, and shall be signed by the
Party or his Authorized Representative
[
(c)
Signature and address. The original of every
Pleading
[
(d)
Form for Pleadings. All
Pleadings
[
(1)
the name of the
Party
[
(2)
a concise statement of the facts relied upon by the pleader;
(3)
a citation of the authority
supporting the relief requested;
(4)
[
(5)
[
(6)
[
(e)
Waiver. The
Executive Director, Examiner, the Board
or its designee,
[
§67.31.Written Motions.
Any motion relating to a pending
Proceeding
[
§67.33.Amended Pleadings.
Any
Pleading may be amended without leave until thirty (30) days
prior to the hearing. Any Pleading
[
§67.35.Incorporation of Board or ERS Records by Reference.
Any
Pleading
[
§67.37.Docketing and Numbering of Causes.
When an appeal, application, or other
Pleading
[
§67.39.Notice and Service.
(a)
In a
Proceeding
[
(b)
After service of the
Initial Notice
[
§67.41.Contents of Initial Notice and Amendments .
(a)
All
Initial Notices
[
(1)
a statement of time, place, and nature of the hearing;
(2)
a statement of the legal authority and jurisdiction under
which the hearing is to be held;
(3)
a reference to the particular sections of the statutes
and rules involved;
(4)
a short, plain statement of the
issues; and
[
(5)
any other statement required by law.
(b)
If the Executive Director is
unable to state the issues in reasonable detail at the time the Initial Notice
is served, the Initial Notice may be limited to a general statement of the
issues involved. The Executive Director may file, thereafter, an amended or
supplemental notice of hearing providing a more detailed statement of facts
and legal issues to be determined in the Proceeding. If the Agency or other
Party is unable to state the matters in detail at the time the notice is served,
the initial notice may be limited to a statement of the issues involved. Thereafter,
upon written application filed not less than ten (10) days before the date
set for hearing, any Party may request that another Party file a more definite
and detailed statement of facts and issues to be determined in the Proceeding.
Such statement must be filed not less than five (5) days prior to the date
set for the hearing.
(c)
[
§67.43.Dismissal without Hearing.
(a)
Motions for dismissal without a hearing may be filed and
ruled upon for any of the following reasons:
(1)
failure to prosecute a claim;
(2)
unnecessary duplication of
Proceedings
[
(3)
withdrawal or voluntary dismissal of appeal;
(4)
moot questions or obsolete petitions;
(5)
following a Member's request for
[
(6)
upon agreement of the
Parties pursuant to §67.11
of this chapter (relating to agreements to be in writing); or
[
(7)
failure to appear at any hearing
for which notice has been served.
(b)
The
Examiner
[
(1)
failing to personally appear at
any
[
(2)
failing to personally appear at
any
[
(3)
failing to request a hearing or
to
take some
other action specified by the
Examiner or Executive Director
[
(c)
The
Board, its designee, or the Executive Director
[
(d)
All dismissals by an Examiner under this section are
mandatory and shall be unconditional. Upon a timely motion to reinstate and
a showing of
[
§67.45.Prehearing Conference.
(a)
In any
Proceeding
[
(1)
the simplification of issues;
(2)
the possibility of making admissions of certain averments
of fact or stipulations concerning the use by any of the
Parties
[
(3)
the procedure at a hearing;
(4)
the limitation, where possible, of the number of witnesses;
(5)
any other matters which may aid in the simplification
or resolution
of the
Proceedings
[
(b)
A motion or notice under this
section shall describe the subject matter of the conference with reasonable
specificity.
(c)
[
(d)
[
§67.47.Postponements or Continuances.
(a)
The
Examiner shall postpone or continue a hearing
upon the agreement of the Parties pursuant to §67.11 of this chapter
(relating to agreements to be in writing), and the Examiner
[
(b)
A motion for postponement or continuance
that is not
subject to the agreement of the Parties
shall be in writing, shall be
served on all
Parties
[
§67.49.Motion for Consolidation.
A motion for consolidation of two or more
Proceedings
[
§67.51.Nature of Hearings.
All hearings conducted in any
Proceeding
[
§67.53.Presiding Officer.
(a)
Evidentiary hearings
[
(b)
The Examiner's conduct in Proceedings
governed by this chapter shall comport with and be subject to the provisions
of the Texas Code of Judicial Conduct to the extent consistent with the powers
granted to the Examiner by law. To this end, Examiners shall conduct all Proceedings
in a fair and impartial manner, and they shall refrain from providing legal
advice or guidance to any Party or Authorized Representative other than on
minor procedural matters.
§67.55.Order of Procedure.
(a)
The
Examiner
[
(b)
Burden of Proof. The Party
seeking relief is the Party with the burden of proof on all issues throughout
the Proceedings, including issues in the nature of an affirmative defense.
(c)
[
(d)
Invocation of "The Rule." Upon
the motion of any Party to the Proceeding, nonparty witnesses shall be excluded
during the testimony phase of the Proceeding as provided in Tex. R. Civ. P.
267(a) - (d). A witness or Party's failure to comply with the Examiner's Order
granting such motion may be subject to an appropriate sanction as provided
in §67.13 of this chapter (relating to conduct and decorum).
(e)
[
(f)
[
(g)
[
§67.57.Reporters and Transcripts.
(a)
An official record shall be made in all
Proceedings
[
(b)
To the extent that any motion by any
Party
[
(c)
Errors claimed to be in a transcription of a contested
hearing shall be noted in writing, and suggested corrections may be offered
within ten (10) days after the transcript is filed with the
Examiner
[
§67.61.Offer of Proof.
(a)
Formal exceptions to rulings of the
Examiner
[
(b)
When testimony is excluded by ruling of the
Examiner
[
§67.63.Briefs.
(a)
Briefs shall conform, where practicable, to the requirements
for form of
Pleadings
[
(b)
Briefs may be requested by the
Examiner
[
§67.65.The Record.
(a)
Contents of record. The record in a
Proceeding
[
(1)
all
Pleadings
[
(2)
evidence
admitted
[
(3)
a statement of matters officially noticed;
(4)
questions and offers of proof, objections, and rulings
on objections;
(5)
proposed findings, exceptions,
replies to exceptions,
and supporting briefs;
(6)
any
proposal for
decision, opinion, or report
by the
Examiner
[
(7)
all staff memoranda or data submitted to the
Examiner
[
(b)
Closing the record.
(1)
Upon the conclusion of the hearing, the
Examiner
[
(2)
Evidence of any kind other than that described in subsection
(a) of this section, not made a part of the record prior to closing, shall
be accepted by the
Examiner or the Executive Director
[
(c)
Findings of fact. Findings of fact shall be based exclusively
on the evidence and on matters officially noted.
§67.69.Rules of Evidence.
(a)
The rules of evidence as applied in nonjury
civil cases in the district courts of this state shall be followed. Irrelevant,
immaterial, or unduly repetitious evidence shall be excluded. When necessary
to ascertain facts not reasonably susceptible of proof under those rules,
evidence not admissible under them may be admitted (except where precluded
by statute
or this chapter
) if it is of a type commonly relied
upon by reasonably prudent persons in the conduct of their affairs. [
(b)
Opinion evidence of a medical
condition or cause must be based on reasonable medical probability and supported
by objective medical evidence. Subjective complaints of pain or other symptoms
that are uncorroborated by objective medical evidence may not support a finding
of fact relating to an allegation concerning a medical condition, disability,
cause of incapacity for the further performance of duty or other medical issues.
(c)
The rules of privilege recognized
by law shall be effective in Proceedings. Objections to evidentiary offers
may be made and shall be noted in the administrative record. No evidence will
be admissible in a Proceeding if it is beyond the scope of the issues in the
Proceeding.
§67.71.Official Notice.
Official notice may be taken of judicially cognizable facts, and such
notice may be taken of generally recognized facts within the area of the specialized
knowledge of
ERS
[
§67.73.Documentary Evidence.
(a)
Documentary evidence may be received in the form of copies
or excerpts, upon a showing that the original is not readily available. On
request, however,
Parties
[
(b)
When a large number of similar documents are offered, the
Examiner
[
(c)
Documents containing confidential
medical or psychiatric records or health information may, upon proper and
timely motion, be placed under seal and access limited to the Parties, the
Examiner, the Executive Director, her staff and the Board or its designee
in accordance with applicable law. In Proceedings involving allegations of
misrepresentation, improper failure to disclose or other misconduct by the
Appellant, the interests of the plans and programs administered by the Board
shall be considered in ruling on a motion to seal records, and the Examiner's
Order on the motion shall be subject to review by the Board or its designee.
Nothing in this section shall be construed as limiting ERS' discretion to
share evidence of criminal misconduct with any appropriate law enforcement
authority or to otherwise disclose or use the confidential information as
authorized by law. The requirements of Texas Rule of Civil Procedure 76a shall
not be applicable in ERS Proceedings.
§67.74.Telephonic Proceedings.
(a)
Upon timely motion containing the pertinent telephone number(s),
a Party may request to appear before the Examiner by telephone or videoconferencing
or to present the testimony of a witness by such methods. The Party requesting
to appear or present testimony by telephone or videoconferencing has the burden
to show that good cause exists for the granting of the request. Unless all
Parties agree to the request, the requesting Party must demonstrate:
(1)
how witnesses will be separated;
(2)
that coaching of witnesses shall not occur and how coaching
of witnesses will be prevented;
(3)
why observing a witness' demeanor is not essential to the
case; and
(4)
how the witness' identity will be verified at the time
of hearing.
(b)
If the request is granted, a Party may appear or a witness
may testify by telephone or videoconferencing before the Examiner if each
participant in the hearing has an opportunity to participate in and hear the
Proceeding.
(c)
The Examiner may conduct a prehearing conference by telephone
or videoconferencing upon reasonable and adequate notice to the Parties, even
in the absence of a Party motion.
(d)
All substantive and procedural rights apply to telephone
and videoconferencing prehearings and hearings, subject only to the limitations
of the physical arrangement.
(e)
Documentary evidence to be offered at a telephone or videoconferencing
prehearing conference or hearing shall be served on all Parties and filed
at least fourteen (14) days before the prehearing conference or hearing unless
the Examiner, by written Order, amends the filing deadline.
(f)
For a telephone or videoconferencing hearing or prehearing
conference, the following may be considered a failure to appear and grounds
for dismissal if the conditions exist for more than 15 minutes after the scheduled
time for hearing or prehearing conference:
(1)
failure to answer the telephone or videoconference line;
(2)
failure to free the line for the Proceeding; or
(3)
failure to be ready to proceed with the hearing or prehearing
conference as scheduled.
§67.75.Admissibility of Prepared Testimony and Exhibits.
When a
Proceeding
[
§67.77.Introduction of Exhibits.
(a)
Form of exhibits. Exhibits of documentary character shall
be of a size which will not unduly encumber the files and records of the
Examiner, Board or its designee,
[
(b)
Tender and service. The original of each exhibit offered
shall be tendered to the
Examiner
[
(c)
Excluded exhibits. In the event an exhibit has been identified,
[
(d)
Late exhibits. Unless specifically directed by the
Examiner and upon a showing of good cause
[
§67.79.Witnesses.
(a)
Oral testimony shall be presented under oath administered
by the
Examiner
[
(b)
The
Examiner
[
§67.81.Examiner's [
(a)
If, in a
Proceeding
[
[
(b)
[
(c)
[
§67.83.Filing of Exceptions and Replies.
(a)
Any
Party
[
(b)
Upon the expiration of the
earlier of the time to
file exceptions (if no exceptions are filed) or the time for the Examiner
to respond to any timely filed exceptions or replies, the Examiner shall forward
the record to the Executive Director and the
[
(c)
Upon review of the record,
the Executive Director may reverse ERS' decision underlying the Proceeding.
Otherwise, the Proceeding will be submitted to the Board or its designee for
a final administrative decision unless it is resolved informally as allowed
by law.
§67.85.Form of Exceptions and Replies.
Exceptions and replies to exceptions shall conform as nearly as practicable
to the rules provided for
Pleadings
[
§67.87. Submission of Appeals to the Board's Designee [
(a)
Except as otherwise provided in this chapter,
Proceedings shall be considered by the Board's designee for a final decision,
and shall be decided on submission of the record. Upon written motion and
a showing of good cause, a Party or his Authorized Representative may make
a written request for oral argument before the Board's designee. The request
must be filed with the Executive Director no later than the thirtieth (30th)
day after the deadline to file exceptions or the Examiner's deadline to respond
to exceptions and replies, whichever is later. The designee's decision regarding
a request for hearing constitutes final Agency action and no further administrative
appeal from the decision is available. If the request is granted, the oral
argument shall be conducted in accordance with §67.89 of this chapter
(relating to presentation of contested cases to the Board or its designee).
In a Proceeding referred to the Board pursuant to §67.5(d) of this chapter
(relating to appeals), a request for oral argument shall be directed to the
Executive Director.
[
(b)
The Parties may submit written
arguments to the Board's designee within thirty (30) days after service of
the Examiner's final proposal for decision responding to any exceptions and
replies to exceptions filed by the Parties. Responses to such written arguments
shall be filed within thirty (30) days after service of the written argument.
All written arguments and responses shall be filed with the Executive Director.
(c)
Proceedings to be decided upon
submission shall be submitted to the Board's designee after sixty (60) days
from ERS' receipt of the record from the Examiner and all written arguments
and responses, if any.
§67.89.Presentation of Contested Cases to the Board or its Designee .
(a)
When a request for oral argument is granted pursuant
to §67.87 of this chapter (relating to submission of appeals to the Board's
designee, the Examiner
[
(1)
concisely state the nature of the case;
(2)
concisely state the positions of the
Parties
[
(3)
concisely state his or her proposal for deciding the case
and the basis for that proposal;
and
(4)
respond to questions concerning the hearing and the proposal
directed to him [
(b)
In a Proceeding that the Executive
Director, in her sole discretion, determines should be set for consideration
before the Board, a Party may present oral argument to the Board before the
final determination of any Proceeding by filing with the Executive Director
a written request to do so at least three (3) business days prior to the day
on which the Board is to consider the Proceeding. If such a request is not
timely filed, oral argument shall be allowed only at the discretion of the
Board. In the event that oral argument is allowed and all Parties are present
and prepared to present oral argument, the case will proceed. Otherwise, the
Board may, in its sole discretion, hear the case in the absence of any Party,
any Authorized Representative or the Examiner, or continue the case to a future
meeting. In Proceedings affected by the Federal Health Insurance Portability
and Accountability Act of 1996 (Pub. L. No. 104 - 191) ("HIPAA") and rules
promulgated pursuant to HIPAA, the Appellant must also file an authorization
to allow disclosure of protected health information in any Proceeding before
the Examiner, the Board or its designee.
(c)
[
(d)
[
(e)
[
(f)
[
§67.91.Form, Content, and Service of Orders.
(a)
All final
Orders
[
(b)
Acting in its capacity as fiduciary of the employee benefit
plans for which it serves as trustee, the
Board or its designee
[
(1)
clearly erroneous or illogical;
(2)
[
(3)
[
(4)
based on a medical opinion
that is not supported by objective medical evidence, or is not based on reasonable
medical probability;
(5)
[
(6)
confusing, incomplete or misleading;
(7)
immaterial or irrelevant to
the issues; or
(8)
[
(c)
A copy of the
Board's or its designee's
[
§67.93.Administrative Finality.
(a)
Administrative action becomes final in any
of the following events:
(1)
adoption by the Board or its designee of
a final Order and the failure to file a motion for rehearing within the time
prescribed by §67.97 of this chapter (relating to rehearing).
(2)
[
(3)
[
(b)
Any other decisions designated
by these rules to constitute final Agency action are subject to §67.97
of this chapter regarding motions for rehearing.
§67.95.Effective Date of Order.
The effective date of a final decision or
Order
[
§67.97.Rehearing.
Motions for rehearing must be filed with the
Executive Director
[
§67.99.Emergency Order.
If the
Board or its designee
[
§67.101.Ex Parte Communications.
(a)
Unless required for the disposition of ex parte matters
authorized by law,
the Executive Director, Examiners, Trustees or the
Board's designee
[
(b)
Any contact with
any Trustees, the Board, or its designee
[
(c)
This rule does not apply to
communications between the Executive Director, Board or its designee and their
staff, including, but not limited to the ERS general counsel and staff experts
as permitted by Government Code §2001.061(c).
§67.103.Subpoenas.
(a)
The issuance of subpoenas in any
Proceeding
[
(b)
Motions for subpoenas to compel
the attendance or
production of witnesses,
the production of books, records, papers, or
other objects shall be addressed to [
(c)
Subpoenas shall be issued by the
Executive Director
[
(1)
the movant has shown good cause that the subpoena should
be issued
or all of the Parties have agreed pursuant to §67.11 of
this chapter (relating to agreements to be in writing) that a subpoena should
be issued
; and
(2)
the movant has deposited sums sufficient to ensure payment
of all expenses incident to the subpoenas. Service of subpoenas and payment
of witness fees and expenses shall be made in the manner prescribed in the
APA §§2001.089, 2001.103 and 67.109 of this chapter relating to
(witness fees)
[
§67.105.Depositions.
Unless otherwise agreed to by the Parties pursuant to §67.11
of this chapter, the
[
§67.107.Discovery Generally.
The Parties to a contested case may engage in any type of discovery
authorized by the Texas Rules of Civil Procedure
and the APA
. The
manner and procedure for engaging in such discovery
, including, but not
limited to deadlines to object or respond to discovery requests,
shall
be the manner and procedure specified in the Texas Rules of Civil Procedure
or the
APA
[
§67.108.Discovery Sanctions.
The provisions of Tex. R. Civ. P. 215 shall apply to Proceedings governed
by this chapter, except to the extent the rule is inconsistent with the provisions
of the APA or this chapter. Examiners shall not have authority to impose monetary
sanctions or costs. In addition, all motions relating to discovery shall be
filed with the Examiner, subject to review by the Board or its designee, except
as otherwise provided in the APA, §2001.201 and §2001.202.
§67.109.Witness Fees.
Witness fees are as follows
:
[
(1)
Mileage and per diem allowances are the same as those provided
for state employees under
applicable law or regulation
[
(2)
A standard appearance fee for each day or part of a day
the
Person
[
(3)
Fees
may be tendered with service of a subpoena to
compel testimony or the production of records, but otherwise
shall be
paid only on presentation of proper vouchers sworn by the witness and approved
by
ERS
[
(4)
Witness fees will be paid by
ERS
[
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 July 7, 2006.
TRD-200603641
Paula A. Jones
General Counsel
Employees Retirement System of Texas
Earliest possible date of adoption: August 20, 2006
For further information, please call: (512) 867-7421
34 TAC §67.111
(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 Employees Retirement System of Texas or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Employees Retirement System of Texas ("ERS")
proposes the repeal of 34 Texas Administrative Code, §67.111, concerning
Conflicting Claims to Benefits.
The repeal of §67.111 is proposed because this rule is superseded
by Texas Government Code §815.512 and Texas Insurance Code §1551.354
regarding procedures for addressing multiple competing claims. Section 67.111
is deleted in order to avoid confusion regarding the proper procedures and
remedies in addressing competing claims for ERS benefits.
Paula A. Jones, General Counsel, has determined for the first five-year
period the repeal is in effect there will be no fiscal implications for state
or local government as a result of enforcing or administering the rule as
proposed.
Ms. Jones has also determined that for each year of the first five years
the repeal is in effect, the anticipated public benefit will be enhanced clarity
of the proper procedures and remedies for addressing competing claims for
ERS benefits. There will be no affect on small businesses. There are no anticipated
economic costs to persons who are required to comply with this rule as proposed.
Comments on the proposed repeal may be submitted to Paula A. Jones, General
Counsel, P.O. Box 13207, Austin, Texas 78711-3207, or you may e-mail her at
paula.jones@ers.state.tx.us. The deadline for receiving comments is Monday,
August 21, 2006, at 10:00 a.m.
The repeal is proposed under the Texas Government Code, §815.102
which provides authorization for the ERS Board of Trustees to adopt rules
for hearings on contested cases or disputed claims. In addition, Texas Insurance
Code, §1551.052 authorizes the Board of Trustees to adopt rules consistent
with the chapter as it considers necessary to implement the chapter and its
purposes.
The proposed repeal does not affect any other statutes, articles, or codes.
§67.111.Conflicting Claims to Benefits.
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 July 7, 2006.
TRD-200603642
Paula A. Jones
General Counsel
Employees Retirement System of Texas
Earliest possible date of adoption: August 20, 2006
For further information, please call: (512) 867-7421
Chapter 67.
HEARINGS ON DISPUTED CLAIMS
chapter's sections
] shall be given a fair and impartial construction to attain these objectives.
the institution, conduct, and determination of
]
all
Proceedings
[
causes and proceedings
] before the
Board
, its designee or ERS
[
of Trustees
] where notice
and hearing are required.
In accordance with §815.102(b), Government
Code, this chapter supersedes and replaces all rules of procedure promulgated
by the State Office of Administrative Hearings ("SOAH") in Proceedings originating
with ERS.
This
chapter
[
chapter's sections
] shall
not be construed so as to enlarge, diminish, modify, or alter the jurisdiction,
powers, or authority of the Board
, its designee, ERS
[
of Trustees
] or the substantive rights of any person.
Nor shall this chapter
have the effect of waiving the sovereign (governmental) or official immunity
of ERS, its trustees, officers, employees, agents, Administering Firms and
Insurers.
Chapter
], shall have the following meanings, unless the context clearly
indicates otherwise.
legislature
], the courts,
or any publicly funded institution
[
the Texas Workers' Compensation
Commission, the institutions
] of higher education) which makes rules
or determines contested cases.
(2)
] Board--The Board of Trustees
of the Employees Retirement System of Texas.
(3)
Contested Case--A proceeding
in which the legal rights, duties, or privileges of a party are to be determined
by the Board after an opportunity for adjudicative hearing.]
executive director
] to conduct hearings.
This term also includes an Administrative Law Judge
("ALJ")
[
(ALJ)
] appointed by
SOAH
[
the State Office of Administrative
Hearings (SOAH)
] to preside at the hearing of a contested case when
the Executive Director [
of the Employees Retirement System of Texas
]
requests that SOAH conduct hearings.
executive director
] of the Employees Retirement System of Texas
or her designee
.
person
] who is
or claims to be
eligible
[
entitled
] to participate in
the
Texas Employees
[
Uniform
] Group
Benefits
[
Insurance
] Program established by the Texas Employees [
Uniform
] Group [
Insurance
] Benefits Act, Texas Insurance Code,
Chapter 1551
[
Article 3.50-2
].
person
] who is
a member, retiree, or beneficiary of any retirement system
or program
administered by the
Board
[
board
].
board
] in a matter other
than rulemaking.
person or
agency
] named or admitted as a party
of record
in a
Proceeding
[
contested case
]. This term also includes the
definition set forth in §67.17
of this chapter (relating to parties
defined)
.
agency
].
allegation
] by
a Party
[
the parties or the Employees
Retirement System of Texas
] of
the issues on appeal arising from
the Party's
[
their or its
] respective claims
or defenses
in connection with a Proceeding
. Pleadings may take the form of applications,
petitions,
notices of
appeals
and requests for hearing,
complaints,
briefs, exceptions, replies, motions, notices, or answers.
the denial of relief or the dismissal of
an appeal if the matter is
] a contested case under
§2001.003(1)
of the APA
[
the Administrative Procedure Act (Tex. Gov't Code, §§2001.001
et seq.)
].
decision making body defined as the
board
].
Appeal of Denied Claims ].
executive
director
] denies a claim,
or takes other action for which an appeal
is allowed by law, or takes other action for which an appeal is allowed by
law,
the
Claimant
[
claimant
] has 30 days from
the date the
determination
[
executive director's
] letter
is served on the
Claimant
[
claimant
] to file
a
written notice of [
the
] appeal
as specified in §67.7
of this chapter (relating to filing and service of documents and Pleadings)
. The
determination
[
denial
] letter will inform
the
Claimant
[
claimant
] of this right
, as appropriate.
Mandatory
[
. The
] venue for an administrative hearing of the
appeal will be in Austin, Texas[
, unless for good and sufficient cause
the executive director shall, in the interest of the Employees Retirement
System of Texas, designate another place of hearing
].
executive director
] shall decide whether or not a notice of appeal is timely filed under
this
chapter
[
Chapter
]. The
Executive Director's
[
executive director's
] decision [
regarding venue of
the hearing and whether or not a notice of appeal is timely filed
] constitutes
final
Agency
[
agency
] action on the issue and no administrative
appeal from the
Executive Director's
[
executive director's
] decision is available.
Chapter
] is limited to
Members, Insureds, Insurers,
[
members, insureds, insurers,
] respondents, appellants,
Claimants,
Administering Firms, beneficiaries of a deceased Member or Insured,
[
administering firms,
] and
Persons or Agencies
[
persons
or agencies
] permitted to intervene pursuant to §67.21 of this
chapter
[
title
] (relating to
intervention
[
Intervention
]).
Healthcare providers under the Texas Employees
Group Benefits Act, ERS vendors (other than Insurers and Administering Firms)
and other third parties not specifically designated herein as having standing
do not have standing to appeal ERS decisions.
(d)
] The
Executive Director
[
executive director
] may delegate
, either generally,
or in a particular Proceeding,
the duties of the
Executive Director
[
executive director
] under this
chapter
[
Chapter
] to another
Person
[
person
] who is employed
by
ERS
[
the Employees Retirement System of Texas
].
All
]documents and
Pleadings
[
pleadings
] relating
to any
Proceeding
[
proceeding
] pending or to be instituted
before
ERS,
the
Board or its designee
[
board
]
shall be filed with and/or served upon the
Executive Director
[
executive director
].
contested case
] referred by the
Executive Director
[
executive director
] to an
Examiner
[
examiner
] to conduct a hearing, all
Parties
[
parties
] shall file documents and
Pleadings
[
pleadings
] initially with the
Examiner
[
examiner
]. After
the
Examiner
[
examiner
] issues
a
[
his
] final [
report and
] proposal for decision
, including
any responses to exceptions to the proposal for decision and replies to exceptions
filed by the Parties, the Examiner no longer has jurisdiction over the Proceedings,
and the Parties
[
and all proceedings before the examiner have concluded,
parties
] are then required to file all documents and
Pleadings
[
pleadings
] with the
Executive Director
[
executive director
].
Thereafter, all Pleadings in the Proceeding
shall be addressed to the Executive Director.
pleadings
] filed with or served upon the
Executive Director
[
executive director
] or
Examiner
[
examiner
] shall
be served upon all other
Parties
[
parties of record
]
to the
Proceeding
[
proceeding
]
or their Authorized
Representative
contemporaneously with such filing or service. [
If any party is represented by an attorney or other representative authorized
under this Chapter to make appearances, service shall be made upon that attorney
or representative.
]
pleadings
] required to be served on any
Party
[
party
] may be served by any of the following methods:
party's
] last known
address;
party's
] current facsimile number; or
executive director or examiner
], in
their
[
his
] discretion, may reasonably require.
pleading
] or document is properly addressed, postage paid
and deposited in a postal box. Service by facsimile is complete when the
Pleading
[
pleading
] or document is transmitted to the recipient's
current facsimile number. Service by facsimile after 5:00 p.m. (recipient's
time) shall be considered completed service on the following date. Notwithstanding
the foregoing, whenever any portion of a
Pleading
[
pleading
] or document may be considered or ruled upon at a hearing, then the
Party or Authorized Representative
[
party or representative
]
serving same shall, not less than three (3)
business
days prior
to any hearing, take all reasonable steps to notify, by telephone or facsimile,
all other
Parties
[
parties
] to the
Proceeding
[
proceeding
] as to the nature of the
Pleading
[
pleading
] or document filed and the relief requested therein.
party or authorized representative
] filing or serving any documents
or
Pleadings
[
pleadings
] shall, by his signature, certify
to the
Examiner
[
examiner
] or
the Executive Director
[
executive director
]
the Party's
compliance with
these rules regarding service. The failure of any
Party or Authorized
Representative
[
party or authorized representative
] to comply
with
the
rules regarding service of documents and
Pleadings
[
pleadings
] may be grounds for the entry of an
Order
[
order
] striking the
Pleading
[
pleading
] or document from the record or the imposition of other appropriate
sanctions
as specified in §67.108 of this chapter (relating to discovery
sanctions)
.
pleadings
]
are considered to be filed with the
Executive Director or Examiner
[
executive director or examiner
] when they are received by the
Executive Director or Examiner
[
executive director or examiner
] or when they are
served properly
[
postmarked
],
whichever is earlier.
Chapter
], by
Order
[
order
] of the
Executive Director, Examiner, ERS, the
Board or its designee
[
board
], or by any applicable rules
or statutes, the period shall begin on the day after the act, event, mailing,
or default in question and it shall conclude on the last day of that designated
period, unless it is a Saturday, Sunday, or legal holiday
(including
federal and state holidays)
, in which event the period runs until the
end of the next day which is neither a Saturday, Sunday, nor a legal holiday.
title
] (relating to
filing and
service of documents
[
Filing and Service of Documents
] and
Pleadings) may be extended, upon the filing of a motion, prior to the expiration
of the applicable period of time, showing that there is
agreement pursuant
to §67.11 of this chapter (relating to agreements to be in writing) among
all affected Parties, or there is
good cause for such extension of time
and that the need for the extension is not caused by the neglect, indifference,
or lack of diligence of the
Party
[
party
] making the
motion.
proceeding
], which are made before an
Examiner
[
examiner
] has been assigned the matter, or are made after all
Proceedings
[
proceedings
] pending before the
Examiner
[
examiner
] have concluded, the
Executive Director
[
executive director
] will determine whether or not good cause exists
and whether or not an extension should be granted. The
Executive Director's
[
executive director's
] decision constitutes final
Agency
[
agency
] action on the issue and no administrative
appeal from the
Executive Director's
[
executive director's
] decision is available.
proceeding
] after an
Examiner
[
examiner
] has been
assigned the matter, and prior to the time the
Proceedings
[
proceedings
] before the
Examiner
[
examiner
] have
concluded
and the Examiner no longer has jurisdiction
, the
Examiner
[
examiner
] will determine whether or not good cause
exists and whether or not an extension should be granted.
parties, their attorneys, or representatives
],
with regard to any matter involved in any
Proceeding
[
proceeding
] governed by this chapter, shall be
enforceable
[
enforced
] unless it
is
[
shall have been
] reduced to writing
and signed by the
Parties or their Authorized Representatives
[
parties or the representatives authorized by this chapter to appear for them,
] or unless it
is
[
shall have been
] dictated into
the record by them during the course of a hearing
or oral deposition,
or incorporated into an
Order
[
order
] bearing
their written approval
as to form and substance
. This section does
not limit a
Party's
[
party's
] ability to waive, modify,
or stipulate any right or privilege afforded by
this chapter
[
these sections
], unless precluded by law.
party
],
witness,
and Authorized Representative
[
attorney, or other
representative
] shall comport himself in all
Proceedings
[
proceedings
], depositions,
conferences, meetings
and hearings
with dignity, courtesy, and respect for the
Board, its designee, the
Executive Director, Examiners, and all other Parties, their Authorized Representatives,
and participants
[
board, the examiners, and all other parties and
participants
].
Authorized Representatives
[
Attorneys
and authorized representatives
] shall observe and practice the ethical
behavior prescribed for attorneys by the
"Texas Lawyers Creed" and the
"Texas Disciplinary Rules of Professional Conduct"
[
"Code of Professional
Responsibility" and "Canons of Judicial Ethics"
]; provided, however,
that any
Authorized Representative
[
authorized representative
] who is not licensed to practice law
in the state of Texas shall
[
may
] not, by these rules, engage in the unauthorized practice
of law as set forth in
Government Code
[
Tex. Gov't Code
]
Chapter 81, Subchapter G
(Vernon 2005)
[
(Vernon 1998)
].
party
], witness, [
attorney,
] or
Authorized Representative
[
other representative
] may be excluded by the
Board, its designee,
[
board
] or
the Examiner
[
examiner
] from any hearing
for such period and upon such conditions as are just, or may be subject to
such other just, reasonable, and lawful disciplinary action as the
Board,
its designee,
[
board
] or
the Examiner
[
examiner
] may prescribe. Any disciplinary action
taken
[
recommended
] by the
Examiner
[
examiner
] shall be subject
to review by the
Board or its designee
[
board
].
The Examiner is not authorized by these rules to assess monetary sanctions,
attorney's fees, or costs upon any Party or witness, and any provisions of
the Texas Rules of Civil Procedure relating to the award of monetary sanctions,
attorney's fees, or costs do not provide such authority to the Examiner.
proceedings
] governed
by this
chapter
[
Chapter
] are classified as
ERS,
appellants, respondents,
Claimants, Insureds, Insurers, Administering
Firms or Intervenors
[
claimants, insureds, insurers, administering
firms or intervenors
].
Chapter
], shall have the following meanings, unless the context clearly
indicates otherwise.
board
] to administer any coverages, services,
claims,
benefits, or requirements in accordance with
Chapter 1551,
[
Article 3.50-2, Texas
] Insurance Code and by the rules of the
Board. The Administering Firm
[
board, and the administering firm
] shall be considered a
Party
[
party
] to any
Proceeding
[
proceeding
] in connection with such matters.
claimant
]--Any
Person
[
person
] with standing to pursue an administrative
appeal under this
chapter
[
Chapter
] who, by written
Pleading
[
petition
], including
a notice of appeal
[
appeals
], applies for or seeks an available administrative remedy from
the
Board or its designee
[
board
].
The
] insurance carrier
who has contracted with
ERS
[
the board
] to provide coverages
authorized by the Texas Employees [
Uniform
] Group [
Insurance
] Benefits Act,
Chapter 1551,
[
Article 3.50-2, Texas
] Insurance Code. The
Insurer
[
insurer
] shall
be considered a
Party
[
party
] to any
Proceeding
[
proceeding
] which involves a question of eligibility or
coverage under its contract with
ERS
[
the board
].
party
] other
than an
Appellant
[
appellant
] or
Claimant
[
claimant
] who is permitted to become a
Party
[
party
] to a
Proceeding
[
proceeding
] in accordance with §67.21
of this chapter
[
title
] (relating to
intervention
[
Intervention
]).
proceeding
] and their relationship to it
and each
other
.
person or agency
] interested in intervening in any
Proceeding
[
proceeding
] before the
Board or its designee
[
board
] may appear formally
in the Proceeding
[
before the
board
], by filing a motion to intervene with the
Executive Director
[
executive director
] at least
thirty (30)
[
fifteen (15)
] days in advance of the hearing
or submission
date.
person or agency
] interested in intervening in any
Proceeding
[
proceeding
] pending before an
Examiner
[
examiner
]
may file a motion to intervene with the
Examiner
[
examiner
] at least thirty (30) days in advance of the hearing date.
proceeding
], reasons why such
intervention is proper, and in what ways the movant has an economic, proprietary,
or
other
substantial
justiciable
[
personal
]
interest in
the Proceeding
[
such intervention
]. The
motion must be supported by a showing of
standing and
good cause
to intervene
.
executive director
] or
Examiner
[
examiner
], subject to
timely
[
immediate
] review by the
Board or its designee
[
board
], may determine whether or not intervention should be permitted.
party
] may appear and represent himself or, upon written notice duly
filed with the
Executive Director or Examiner
[
executive director
or examiner,
] may
, at the Party's own expense,
appear through
any
Person
[
person
] authorized by that
Party
[
party
] to make appearance for him except as provided in §67.43(b)(1)
of this
chapter
[
title
] (relating to
dismissal
without hearing
[
Dismissal without Hearing
]).
party
] to a
Proceeding
[
proceeding
] may be represented by an attorney-at-law at
the
Party's
[
party's
] own expense.
party representatives
] must conduct themselves in accordance with §67.13
of this
chapter
[
title
] (relating to
conduct and
decorum
[
Conduct and Decorum
]), and are prohibited from knowingly
making
, facilitating,
or participating in the making or presentation
of any false statement, representation, or claim about any material fact in
connection with the
Proceeding
[
proceeding
].
executive
director
], or filed with the
Examiner
[
examiner
]
as provided in §67.7(b) of this
chapter
[
title
]
(relating to
filing and service of documents
[
Filing and Service
of Documents
] and Pleadings),
include
[
shall be
]
notices, applications,
notices of
appeals, claims, answers, exceptions,
replies, motions, or briefs. Regardless of any error in the designation of
a
Pleading
[
pleading
], it shall be accorded its true
status in the
Proceeding
[
proceeding
] in which it is
filed.
and briefs
]
shall be typewritten or printed on paper not to exceed 8 1/2 inches by 11
inches with an inside margin at least one inch wide and
attached
[
annexed
] exhibits shall be folded to the same size. Unless printed,
the impression shall be on one side of the paper only and shall be double
spaced, except that footnotes and quotations in excess of a few lines may
be single spaced. Reproductions may be by any process, provided all copies
are
true and correct,
clear and permanently legible.
claimant, party, or his
authorized representative
].
pleading
] shall be signed in ink by the
Party
[
party
] filing it or by his
Authorized Representative
[
authorized representative
]. Pleadings shall contain the address and
phone number of the
Party
[
party
] filing the document
or the name, business address, and telephone
and facsimile numbers
[
number
] of the
Authorized Representative
[
representative
].
pleadings
] shall contain the following:
party
] supporting
or opposing the [
board
] action
of the Executive Director,
Examiner, the Board or its designee
;
(3)
] a prayer stating the type of
relief, action, or
Order
[
order
] desired by the pleader;
(4)
] any other matter required by
statute or applicable rule
; and
[
.
]
(5)
] a certificate of service or
other notation showing that a copy of the
Pleading
[
pleading
] has been served on all other
Parties
[
parties
]
to the
Proceeding
[
proceeding
] or their
Authorized
Representatives
[
representatives
] in accordance with §67.7
of this
chapter
[
title
] (relating to
filing and
service of documents
[
Filing and Service of Documents
] and
Pleadings).
executive director, or examiner
] if applicable,
may waive any requirement of this section if
it is determined
[
he determines
] that application of the requirement to a
Party
[
member, party, or insured
] would create an unnecessary hardship and
that not requiring the
Party
[
member, party, or insured
]
to comply with the section will not adversely affect the rights of any other
Party
[
party
].
proceeding
], unless made during a hearing, shall be written and shall set forth
the relief sought and the specific reasons and grounds for relief. If based
upon matters which do not appear of record, it shall be supported by certified
copies of documents relied upon, documents properly authenticated, or, in
the case of testimony, sworn affidavits. With the exception of motions for
continuance (see §67.47 of this
chapter, (relating to postponements
or continuances)
[
title (relating to Postponements or Continuances)
]), any motion filed in a
Proceeding
[
proceeding
]
must be filed and served
on the Examiner (or the Executive Director if
the Examiner no longer has jurisdiction), and all Parties or their Authorized
Representatives
not less than three (3)
business
days before
the date of the hearing
unless a showing of good cause for not complying
with this provision is made
.
pleading except notices of
issues
] may be amended at any time until three (3)
business
days
prior to the hearing, provided that it does not act as a surprise to
any other Party
[
the opposite party
]. Any amendment to a
Pleading
[
pleading
] which operates as a surprise to any other
Party
[
party
], may be granted only upon written motion showing
good cause and that no harm will result.
pleading
] may adopt and incorporate,
by specific reference, any part of any document or entry in the official files
and records of the
Board
[
board
] or of
ERS
[
the Employees Retirement System of Texas
].
Such adoption by reference
does not relieve Parties of their burden, under these rules, or other applicable
law, to produce admissible evidence to support their claims.
[
This section shall not relieve any party of the necessity of alleging in detail,
if required, facts necessary to sustain his burden of proof imposed by law
or applicable rule.
]
pleading
] which is intended to institute a hearing before the
Board or
its designee
[
board
] is received, and it complies with these
rules as to form and content, it shall be referred to an
Examiner
[
examiner
] to conduct the hearing, shall be docketed as a pending
Proceeding
[
proceeding
], and notice shall be served.
contested case
],
the
Executive Director
[
executive director or examiner
]
shall give
Initial Notice
[
initial notice
] of hearing
and the issues to be determined therein
("Initial Notice")
[
(initial notice)
]. The
Initial Notice
[
initial notice
] shall be given not less than twenty (20) days prior to hearing. In
stating the issues and matters asserted in the
Initial Notice
[
initial notice
], the
Executive Director
[
executive director
or examiner
] shall state verbatim the issues and matters set forth in
the letter from the
Executive Director
[
executive director
] to the
Examiner
[
examiner
] referring the case
for hearing.
initial
notice
], any
Party or his Authorized Representative
[
party
] wishing to raise issues or matters not set forth in the
Initial Notice
[
initial notice
] must do so by filing a motion
setting forth such
proposed
issues or matters not less than
thirty (30)
[
ten (10)
] days before the date set for hearing.
The motion must be based on facts and legal authorities supporting the inclusion
of additional issues. Responses to the motion may be filed and served within
fourteen (14) days from the date the motion is served.
If granted, the
Examiner
[
examiner
] shall give notice, not less than
seven (7)
[
five (5)
] days before the date of hearing, of
the additional issues and matters to be decided in the
Proceeding
[
contested case
].
initial notices
]
shall include the following:
matters asserted. If the agency or other party is unable to state the matters
in detail at the time the notice is served, the initial notice may be limited
to a statement of the issues involved. Thereafter, upon written application
filed not less than ten (10) days before the date set for hearing, any party
may request that another party file a more definite and detailed statement
of facts and issues to be determined in the proceeding. Such statement must
be filed not less than five (5) days prior to the date set for the hearing;
and
]
(b)
] All other notices in a
Proceeding
[
contested case
] shall set forth only the additional
issues and matters to be decided.
proceedings
] or res judicata;
lack
of jurisdiction or the member has requested
] a refund of his retirement
account
, or other matters establishing a lack of jurisdiction
;
[
or
]
parties.
]
examiner
] shall, and
the
Board, its designee, or the Executive Director
[
board
and executive director
] may, dismiss the appeal of any
Person
[
person
] who has filed written notice of the appeal but who
defaults
[
defaulted
] by:
the
] hearing if the
Appellant
[
appellant
] is not
represented by an
Authorized Representative
[
attorney-at-law
] unless such appearance is waived by agreement of all the
Parties
pursuant to §67.11 of this chapter
[
parties
];
the
] hearing if the
Appellant
[
appellant
] is represented
by an
Authorized Representative
[
attorney-at-law
] unless
the
Appellant
[
appellant
] gives
written
notice
at least ten (10) days prior to the date of the hearing that the
Appellant
[
appellant
] will not personally appear or unless such appearance
is waived by agreement of all
Parties pursuant to §67.11 of this
chapter
[
parties
]; or
examiner
] within thirty (30) days after notice is mailed of intention
to dismiss the claim.
board or executive director
] may dismiss an appeal for
any of the reasons described in subsection (a) of this section. A dismissal
of an appeal by the
Board, its designee, or the Executive Director
[
board or executive director
] constitutes final
Agency
[
agency
] action on the appeal and no administrative appeal from the decision
is available.
For
] good cause, the
Executive Director
[
executive director
] may
, in her sole discretion, thereafter
permit reinstatement of an appeal.
A motion to reinstate may not
be filed later than thirty (30) days from the date the Order of dismissal
is served. An Order denying a motion to reinstate constitutes final Agency
action and no administrative appeal from the decision is available.
proceeding
], upon
prior
written notice by the
Executive Director, the Board or its
designee or by the Examiner
[
executive director or board, or by
the examiner
] on
his
[
its
] own motion, or on the
motion of any
Party
[
a party
], the
Parties
[
parties,
]
or
their
Authorized Representatives, any Parties
and their Authorized Representatives
[
attorneys or representatives
] may be directed to appear before the
Examiner
[
examiner
] at a specified time and place for a conference prior to
a
[
the
] hearing for the purpose of formulating issues and considering any
of the following:
parties
] of matters of public record, including, but not limited to
such matters as
Agency
[
annual
] reports
and other
documents
, in order to avoid the unnecessary introduction of proof;
proceedings
],
and the disposition of the matters in controversy[
, including settlement
of such issues as are in dispute
].
(b)
] Action taken at the conference
shall be recorded by the
Examiner
[
examiner
], unless
the
Parties
[
parties
] enter into a written agreement
as to such matters as permitted in §67.11 of this
chapter
[
title
] (relating to
agreements to be in writing
[
Agreements
To Be in Writing
]).
(c)
] A prehearing conference may
be held by means of a
telephone
conference [
telephone
]
call.
examiner
] may postpone or continue a hearing for good cause upon the motion
of any
Party, Authorized Representative or Examiner
[
party
or the examiner
].
parties
] and filed with the
Examiner
[
examiner
] no later than five (5) days prior to
the date of the hearing, and shall set forth the specific grounds
and
good cause
upon which the continuance is sought.
A contested motion
for continuance shall also comply with the requirements of Rules 251 - 253
of the Texas Rules of Civil Procedure. Any motion for postponement or continuance
filed less than five (5) days prior to the date of hearing shall not be granted
unless
[
If
] good cause for the late filing is demonstrated
in the motion
and supported by affidavit(s) or other evidence. In such
instance
, the
Examiner
[
examiner
] may consider
a motion filed after that time or presented orally at the hearing.
appeals, applications, petitions, or other proceedings
] shall be in
writing, signed by the movant
or
[
,
] his
Authorized
Representative
[
attorney or representative
], and filed with
the
Executive Director or Examiner
[
executive director or
examiner
] at least ten (10) days prior to the date set for hearing.
No two or more
Proceedings
[
appeals, applications, petitions,
or other proceedings
] shall be consolidated or heard jointly without
the consent of all
Parties
[
parties
] to all such
Proceedings
[
proceedings
], unless the
Board, its designee,
the Executive Director or Examiner
[
board, executive director,
or examiner shall
] find that the two or more
Proceedings
[
appeals, applications, petitions, or other proceedings
] involve
some or all of the same Parties,
common questions of law or fact, or
both, and shall further find that separate hearings would result in unwarranted
expense, delay, or substantial injustice.
Separate
[
Special
] hearings on
distinct
[
separate
] issues may also
be allowed
where such hearings are in the interest of justice, or upon
the agreement of all Parties to the Proceeding pursuant to §67.11 of
this chapter (relating to agreements to be in writing)
.
proceeding
] shall be open to the public unless the
Board, its designee, the
Executive Director or Examiner
[
board, executive director, or examiner
] determines that all or a portion of the hearing will relate to matters
deemed confidential by law, in which event the hearing
may
[
will
] be closed to the public.
Hearings
] will be conducted by
Examiners appointed by the Executive Director
pursuant to Government Code, §815.511(b)
[
examiners
].
The
Examiner
[
examiner
] shall have authority to administer
oaths, to examine witnesses
pursuant to this chapter
, and to rule
upon
, subject to review by the Board or its designee,
the admissibility
of evidence and amendments to
Pleadings
[
pleadings
].
The Examiner
[
He
] shall have the authority to recess any
hearing from day to day. If the
Examiner
[
examiner
]
is unable to continue presiding over a
Proceeding
[
case
]
at any time before the
Examiner loses jurisdiction
[
final
decision
], another
Examiner
[
examiner
] will be
appointed who shall perform any function remaining to be performed without
the necessity of repeating any previous
Proceedings
[
proceedings
].
examiner
] shall open
the hearing and make a concise statement of its scope and purposes. Once the
hearing has begun,
the Parties or their Authorized Representatives
[
parties or their representatives
] may be off the record only when the
Examiner
[
examiner
] permits. If a discussion off the record
is pertinent, the
Examiner
[
examiner
] may summarize
such discussion for the record. Appearances are to be entered on the record
by all
Parties
[
parties
], their
Authorized Representatives
[
attorneys, or representatives
], and any
Persons
[
persons
] who may testify during the
Proceedings
[
proceedings
]. All
Persons
[
persons
] present who may testify
will then be placed under oath. Thereafter,
Parties
[
parties
] may make motions or opening statements. [
The party seeking relief
is the party with the burden of proof throughout the proceedings.
]
(b)
] Following opening statements,
if any, by both sides, the
Party
[
party
] with the burden
of proof [
(the appellant, insured, petitioner, intervenor, or claimant)
] may be directed to proceed with his direct case. Questions
from
the Examiner shall be limited to matters of
[
by way of
] clarification
only, and such questions shall
[
may be permitted but should
]
not be used
to assist Parties with the burden of proof in meeting their
burden or
as a substitute for cross-examination.
(c)
] Where the
Proceeding
[
proceeding
] is initiated at the
Executive Director's
[
executive director's
] or the
Board's or its designee's
[
board's
] own call, or where several
Proceedings
[
proceedings
] are heard on a consolidated record, the
Examiner
[
examiner
] shall designate who shall open and close and at what stage
intervenors shall be permitted to offer evidence.
(d)
] Opportunity for cross-examination
and presentation of direct and rebuttal
evidence
[
cases
]
shall be afforded all
Parties
[
parties of record
]. After
all
Parties
[
parties
] have completed the presentation
of their evidence, and been afforded the opportunity to ask clarifying questions
and to cross-examine
adverse
[
the opposition
] witnesses,
closing
arguments
[
statements
] may be allowed. The
Party
[
party
] with the burden of proof [
(the appellant,
insured, petitioner, intervenor, or claimant)
] shall be entitled to
open and close.
(e)
]
On a proper motion and
showing of good cause that evidence was not reasonably known or knowable to
the movant, or was not provided in response to a proper discovery request,
the Examiner
[
The examiner
] may also call upon any
Party to provide
[
party or staff of the board for
] further
relevant and
material [
or relevant
] evidence upon any issue
in the Proceeding
before the issuance of a proposal for decision; however,
no such evidence shall be allowed into the record without an opportunity for
inspection, cross-examination, and rebuttal by the other
Parties
[
interested parties
].
proceedings, either by stenographic means or
] by electronic
sound or video recording. In
Proceedings
[
proceedings
]
where arrangements are made for stenographic recording, an official reporter
shall make and, when requested by any
Party or Agency
[
party
] in writing, transcribe a stenographic record of the hearing. The reporter
shall provide as many copies of the transcript as may be requested.
Unless, otherwise provided by an agreement pursuant to §67.11 of this
chapter (relating to agreements to be in writing), the Person or Agency
[
The person or agency
] requesting such transcription shall be responsible
for all costs associated with the transcription.
party
] or any
Order
[
order
] arising from any motion
results in additional costs associated with official reporting of the hearing,
the
Person or Agency
[
person or agency
] making the motion
shall be responsible for the payment of those additional costs. Such costs
[
may
] include
,
but are not limited to
transcription
and
appearance fees incurred as the result of continuance, cancellation,
or postponement of the hearing. Payment of any outstanding additional costs
associated with official reporting of the hearing is a prerequisite to the
making of a stenographic record of the hearing.
examiner
], unless the
Examiner
[
examiner
] shall permit suggested corrections to be offered thereafter. Suggested
corrections shall be
stated in a separate addendum to the transcript
and shall be
served in writing upon each
Party
[
party
of record
] and the
Examiner
[
examiner
]. If not
objected to within twelve (12) days after being offered, the
Examiner
[
examiner
] will direct that such suggested corrections be
made and the manner of making them. In the event that
Parties
[
parties
] disagree on suggested corrections, the
Examiner
[
examiner
], with the aid of
evidence and argument
[
argument
and testimony
] from the
Parties
[
parties
], shall
then determine the manner in which the record shall be changed, if at all.
examiner
] during a hearing shall be unnecessary, but if made, they should
be in accord with §67.69 of this
chapter
[
title
]
(relating to
rules of evidence
[
Rules of Evidence
]).
It shall be sufficient that the
Party
[
party
], at the
time any ruling is made or sought, makes known to the
Examiner
[
examiner
] the action which he desires.
examiner
], the
Party
[
party
] offering
the evidence shall be permitted to make an offer of proof by dictating
into the hearing tape recording or other media
or submitting in writing
the substance of the proposed testimony, prior to the conclusion of the hearing,
and that offer of proof shall be sufficient to preserve the point for review
by the
Board or its designee
[
board
].
Examiners
may ask such clarifying questions of the witness as allowed in §67.55(b)
of this chapter (relating to order of procedure) as necessary to establish
[
The examiner may ask such questions of the witness which he deems
necessary to satisfy himself
] 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.
pleadings
] set out in this
chapter
[
Chapter
]. The
issues
[
points
]
involved shall be concisely stated, the evidence in support of each
issue
[
point
] shall be summarized, and the argument and authorities
shall be organized and directed to each
issue
[
point
]
in a concise and logical manner.
examiner both
] prior to [
and after the
] filing of the
Examiner's
[
examiner's
] proposal for decision set out in §67.81
of this
chapter
[
title
] (relating to Examiner's
report and proposal for decision
[
Report and Proposal for Decision
]).
contested case
] shall
consist of all matters identified in APA §2001.060,
including
[
include
] the following:
pleadings, motions
],
intermediate rulings, and
documents reflecting Board
[
board
] policy;
received or considered
];
examiner
] presiding at the hearing;
examiner
] in connection with his consideration of the case.
examiner
] shall close the record subject to receipt of any information
requested by the
Examiner
[
examiner
] pursuant to §67.55(e)
of this
chapter
[
Chapter
] (relating to
order of
procedure
[
Order of Procedure
]) and receipt of any late exhibits
as described in §67.77 of this
chapter
[
Chapter
]
(relating to
introduction of exhibits
[
Introduction of Exhibits
]).
examiner
] and considered by the
Examiner or the Executive Director
[
examiner
] for inclusion in the record only upon a showing of
relevance,
materiality and
good cause as to why the evidence could not reasonably
have been presented at the hearing.
Such additional evidence shall not
be admitted without providing the Parties not offering the evidence the opportunity
to conduct cross-examination and to offer rebuttal evidence.
The proposal
for decision shall not be presented to the
Board or its designee
[
trustees
] until the
Examiner or the Executive Director
[
examiner
] has made a ruling on such evidence.
The rules of privilege recognized by law shall be effective in board proceedings.
Objections to evidentiary offers may be made and shall be noted in the records.
No evidence will be admissible in a proceeding if it is beyond the scope of
the notices of issues and matters asserted in the contested case.
]
the Employees Retirement System of Texas
]. Parties shall be notified of the material noticed, including any
Board decisions,
staff memoranda or data
,
[
;
] and
they shall be afforded an opportunity to contest the material so noticed.
The special skills or knowledge, or both, of
ERS
[
the Employees
Retirement System of Texas
] and its staff may be utilized in evaluating
the evidence.
parties
] shall be given an
opportunity to compare the copy with the original.
examiner
] may limit those admitted to a number
which are typical and representative, and may, in his discretion, require
a summarization of the relevant data from the documents and the presentation
of the summary in the form of an exhibit; however, before making this requirement,
the
Examiner
[
examiner
] shall see that all
Parties
[
parties
] of record or their
Authorized Representatives
[
representatives
] are given
a reasonable
[
an
] opportunity to examine the documents from which the summaries are
made.
proceeding
] will be expedited
and the interests of the
Parties
[
parties
] will not
be prejudiced substantially,
testimony
[
evidence
] may
be received in written form. The prepared testimony of a witness upon direct
examination, either in a narrative or question and answer form, may be
, if admissible, admitted as evidence and
incorporated in the record
as if read or received as an exhibit, upon the witness' being sworn and identifying
the same as a true and accurate record of what his testimony would be if he
were to testify orally. The witness shall be subject to cross-examination
and his prepared testimony shall be subject to being stricken either in whole
or in part.
board
] and whenever practicable,
shall conform to the requirements of §67.27 of this
chapter
[
title
] (relating to
form and content of
[
Form and Content
of
] Pleadings. Exhibits shall be limited to facts that are material
and relevant to the issues involved in a particular
Proceeding
[
proceeding
].
examiner
] for identification.
One copy shall be furnished to the
Party
[
examiner, and one
copy to each party of record
] or his
Authorized Representative
[
representative
]. Written or printed documents received
in evidence may not be withdrawn except with the approval of the
Examiner
[
examiner
].
objected to,
] and
not admitted into evidence
[
excluded
], the
Examiner
[
examiner
] shall determine
whether or not the
Party
[
party
] offering the exhibit
withdraws the offer, and if so, permit the return of the exhibit to him. If
the excluded exhibit is not withdrawn, it shall be given an exhibit number
for identification, shall be endorsed by the
Examiner
[
examiner
] with his ruling, and shall be included in the record for the purpose
only of preserving
an
[
the
] exception
made to the
Examiner's ruling that the exhibit is not admissible
.
examiner
], no
exhibit shall be filed in any
Proceeding
[
proceeding
]
after the conclusion of the hearing, and then only after a copy of the exhibit
has been served on all
Parties
[
parties
], and all
Parties
[
parties
] have been afforded an opportunity to conduct
further discovery or
cross-examination
[
cross examination
] regarding such late exhibit.
examiner
] or court reporter.
examiner
] shall have
the right in any
Proceeding
[
proceeding
] to limit the
number of witnesses whose testimony is merely cumulative.
Report and ] Proposal for Decision.
contested case
],
a majority of the
Board or its designee
[
trustees
] has
not heard the case or read the record, the decision
by the Board or
its designee
, if adverse to a
Party
[
party
] to
the
Proceeding
[
proceedings
] other than
ERS
[
the board itself
], may not be made until a proposal for decision is
served on the
Parties
[
parties
], and an opportunity
is afforded each
Party
[
party
] adversely affected to
file exceptions and
supporting
briefs with the
Examiner
[
examiner
]. The proposal for decision must contain a statement of the
reasons for the
recommended
[
proposed
] decision and
of each
proposed
finding of fact and conclusion of law necessary
to support the
recommended
[
proposed
] decision, prepared
by the
Person
[
person
] who conducted the hearing or
by one who has read the record
, including Pleadings, exhibits and testimony
admitted or offered into evidence. In addition, the proposal for decision
shall contain a statement of the nature of the case, a discussion of the issues,
the evidence, and the applicable law. A proposal for decision, and any proposed
findings of fact or conclusions of law cited therein, not expressly adopted
by the Board or its designee as its own shall not be considered to be a statement
of the policy of the Board or ERS and shall not be cited as such or relied
upon as controlling authority or as a precedent in a proposal for decision
in a subsequent Proceeding
.
(b)
The proposal for decision
shall be accompanied by an examiner's report. This report shall contain a
statement of the nature of the case, a discussion of the issues, the evidence,
and the applicable law. A proposal for decision, and any findings of fact
or conclusions of law cited therein, not expressly adopted by the trustees
as its own shall not be considered to be a statement of the policy of the
trustees or of the Employees Retirement System of Texas and shall not be cited
as such or relied upon as controlling authority or as a precedent in a proposal
for decision in a subsequent contested case.]
(c)
] Upon completion of the hearing
and the proposal for decision
, the
Examiner
[
examiner
] shall forward
the
[
his report and
] proposal
for decision and the record to the
Executive Director, and the Examiner
no longer has jurisdiction in the Proceeding
[
executive director
]. Ordinarily, a [
report and the
] proposal for decision shall
be submitted not later than the 60th day after the conclusion of the hearing.
[
Upon review of the record, the executive director may reverse the decision
being appealed. When appropriate, the examiner's report and proposal for decision,
with all briefs and exceptions, will be submitted to the board for determination
and order.
]
(d)
] The
Examiner
[
examiner
] shall serve a copy of
the
[
his report and
] proposal for decision on every
Party
[
party of record
].
party of record
] may,
no later than thirty (30) days after the date of service of the [
examiner's
report and
] proposal for decision, file exceptions to the [
report
and
] proposal for decision. Replies to
the
[
these
]
exceptions shall be filed no later than forty-five (45) days after the date
of service of the [
examiner's report and
] proposal for decision.
The
Examiner
[
examiner
], at his discretion, may grant
a reasonable extension of the time for filing of exceptions and replies. A
request for extension of time [
within which
] to file exceptions
or replies shall be filed with the
Examiner prior to the deadline for
filing same
[
examiner
], and a copy of the request shall be
served on all
Parties
[
parties of record
] by the
Party
[
party
] making the request. Additional time shall be
allowed only when the interests of justice so require.
The Examiner shall
have thirty (30) days from the last timely filing of exceptions or replies
to modify the proposal for decision or otherwise respond.
time for filing exceptions
or replies to exceptions, or after the replies and exceptions have actually
been filed (if filed before the period for filing has expired), the examiner's
report and
] proposal for decision may be considered and ruled upon by
the
Executive Director, the Board or its designee as provided in this
chapter
[
board
].
The Examiner's jurisdiction in the
Proceeding terminates at the time for forwarding the record.
pleadings
]. The
specific exceptions shall be concisely stated. The evidence relied upon shall
be pointed out with particularity, and that evidence and any arguments relied
upon shall be grouped
generally
under the exceptions to which they
relate.
Oral Argument before the Board ].
Any party may present oral argument to the
board before the final determination of any contested case by filing with
the board a written request to do so at least three (3) working days prior
to the day on which the board is to consider the contested case. If such a
request is not timely filed, oral argument shall be allowed only at the discretion
of the board. In the event that oral argument is allowed and all parties are
present and prepared to present oral argument, the case will proceed. Otherwise,
the board may, in its discretion, hear the case in the absence of any party
or continue the case to a future board meeting.
]
The examiner
] who prepared the [
report and
] proposal for decision shall
, if practicable,
present
the
Proceeding
[
contested case
] to the
Board or
its designee
[
board
] during the
Board
[
board
] meeting
, or the designee's Proceeding,
at which the case
has been placed
for final administrative decision
[
on the
board's agenda
]. In presenting the case, the
Examiner
[
examiner
] shall:
parties
];
or her
] from a
Trustee or the Board's designee
[
trustee
].
The Examiner shall not present information
that is not part of the record of the Proceeding.
(b)
] A
Trustee or the Board's
designee
[
trustee
] may question the
Examiner
[
examiner
] concerning the hearing, the evidence, [
the report,
]
the proposal for decision or any other matter
concerning
[
within
] the record of the
Proceeding
[
contested case
]. In responding to a question, the
Examiner
[
examiner
] must advise the chairman of the
Board or the Board's designee
[
board
] if the
Examiner
[
examiner
]
believes the question involves a matter outside the record of the
Proceeding
[
contested case
] or is otherwise improper. The chairman
of the
Board or the Board's designee
[
board
] may ask
the general counsel for
her
[
his
] opinion concerning
the propriety of a particular question. The decision of the chairman of the
Board or the Board's designee
[
board
] concerning the propriety
of a question shall be final.
(c)
] A
Trustee or the Board's
designee
[
trustee
] may ask the general counsel for
her
[
his
] opinion concerning the legality of a particular
course of action or decision, the law or rules governing a particular aspect
of matters within the jurisdiction of the
Board or its designee
[
board
], the evaluation of the evidence, or any other legal matter. The
general counsel shall advise the chairman of the
Board or the Board's
designee
[
board
] if the general counsel is of the opinion
that responding to a particular question would be inappropriate. The decision
of the chairman of the
Board or the Board's designee
[
board
] concerning the propriety of a question shall be final.
(d)
] If oral argument is allowed,
then each
Party
[
party
] will be given time, not to exceed
ten (10) minutes, unless additional time is allowed by the chairman of the
Board or the Board's designee
[
five minutes
], to present
oral argument to the
Board or its designee
[
board
].
[
The board may, in its sole discretion, allow additional oral argument
not to exceed a total of 10 minutes for each party.
] Questions by the
Board or its designee
[
board
] and answers to such questions
will not be considered as part of the time limitations described in this section.
Oral argument concerning matters outside the record
and proffered documents
not presented during the evidentiary hearing before the Examiner
will
not be allowed.
(e)
] After the
Examiner
[
examiner
] presents his [
report and
] proposal for decision,
the
Trustees or the Board's designee
[
trustees
] have
been given an opportunity to ask questions, oral argument is presented, and
the
Trustees or the Board's designee
[
trustees
] have
been given an opportunity to discuss
and consider
the case, the
Board or its designee
[
board
] shall act on the case and render
a decision.
orders
] of the
Board or its designee
[
board
] shall be in writing and shall
be signed by the chairman of the
Board or by the Board's designee
[
board
]. A final decision shall include findings of fact and conclusions
of law separately stated. Findings of fact, if set forth in statutory language,
shall be accompanied by a concise and explicit statement of the underlying
facts supporting the findings.
board
] may, in
their sole
[
its
] discretion, modify
, refuse to accept,
or delete any proposed finding of fact or conclusion
of law, or make alternative findings of fact or conclusions of law, if it
is determined by the Board or its designee
[
determines
] that
all or part of
the proposal for decision submitted by the
Examiner
[
examiner
], or a proposed finding of fact or conclusion
of law contained therein, is:
is
] against the weight of the evidence;
is
] based on
a
misapplication of
the rules of evidence or
an
insufficient review of the evidence;
(4)
] [
is
] inconsistent
with the terms or intent, as determined by the
Board or its designee
[
board
], of
an applicable statute,
benefit plan
or insurance policy
provision;
[
provisions; or
]
(5)
] [
is
] not sufficient
to protect [
the public interest,
] the interests of the plans and
programs for which the
Board
[
board
] is trustee, or
the interests, as a group, of the
Members, retirees or
participants
covered by such plans and programs. The
Order
[
order
]
shall contain
or reference
a written statement of the reason and
legal basis for each change made based on the foregoing policy reasons.
Correction of nonsubstantive typographical errors do not need to be explained.
board's
] decision or
Order
[
order
] shall be served
on
each Party
[
any party
] or his
Authorized Representative
[
authorized representative
].
(1)
] adoption by the
Board
or its designee
[
board
] of a final
Order
[
order
] and the denial of a motion for rehearing, either expressly or
by operation of law
; or
[
.
]
(2)
] adoption by the
Board
or its designee
[
board
] of a final
Order
[
order
] which includes a statement that no motion for rehearing will
be necessary because an imminent peril to the public health, safety, and welfare
, including such peril to a plan or program administered by the Board,
requires
immediate effect to be given to a final decision or
Order
[
order
].
order
], unless otherwise stated, is the date of
the Board's or its designee's
[
board
] action and it shall be incorporated in the body
of the
Order
[
instrument
].
executive director
] no later than twenty (20) days after
the date the
Party
[
party
] or his
Authorized Representative
[
attorney of record
] is served with a copy of
a
[
the board's
] final decision or
Order
[
order
].
A reply to a motion
[
Replies to motions
] for rehearing must
be filed with the
Executive Director
[
executive director
]
no later than thirty (30) days after the date of service of the [
board's
] final decision or
Order
[
order
].
Action
[
Board action
] on the motion shall be taken no later than
forty-five (45) days after the date the
Party
[
party
]
or his
Authorized Representative
[
attorney of record
]
is served with the [
board's
] final decision or
Order
[
order
]. If [
board
] action is not taken within this 45-day
period, the motion for rehearing shall be overruled by operation of law. The
[
board may by written order extend the
] period of time for filing
these motions and replies and for taking [
board
] action
thereon
may be extended by written Order
, except that this extension shall not
extend the period for
the Board's or its designee's
[
board
] action
on the motion
beyond ninety (90) days after the
date the
Party
[
party
] or his
Authorized Representative
[
attorney of record
] is served with a copy of the final
decision or
Order
[
order
]. In the event of an extension,
the motion for rehearing shall be overruled by operation of law upon the date
fixed by the
Order
[
order
], or in the absence of
a deadline provided in the Order
[
an order
], 90 days after
the date the
Party
[
party
] or his
Authorized Representative
[
attorney of record
] is served with a copy of the final
decision or
Order
[
order
].
board
] finds that
an imminent peril to the public health, safety, or welfare
, including
such peril to a plan or program administered by the Board,
requires
immediate effect of a final decision or
Order
[
order
]
in a
Proceeding
[
contested case
],
the Board or
its designee
[
it
] shall recite that finding in the decision
or
Order,
[
order;
] and the decision or
Order
[
order
] shall be final and appealable from the date rendered and no motion
for rehearing shall be required as a prerequisite for appeal.
members or employees of an agency
] assigned
to render a
proposal for
decision
or Order,
or to make
proposed or adopted
findings of fact and conclusions of law in a
Proceeding
[
contested case
] may not communicate, directly
or indirectly, in connection with any issue of fact or law with any
Party
[
party
] or his
Authorized Representative
[
representative
], except on notice and opportunity for all
Parties
[
parties
] to participate.
the board or any members thereof
] by a
Party, an Authorized
Representative
[
party
] or someone
acting for a Party
[
representing a party
] during the appeal process, other
than that described in
§67.89
[
§67.87
] of
this
chapter
[
title
] (relating to
presentation
of contested cases to the Board or its designee
[
Oral Argument
before the Board
]), is improper.
proceeding
] shall be governed by the
subpoena provisions of the
APA (Government Code §2001.089)
[
Administrative Procedure
Act (Tex. Gov't Code §2001.001 et seq.)
]. Following written request
by a
Party
[
party
] or on its own motion, the
Executive
Director or her designee
[
board, executive director or examiner
] may issue subpoenas addressed to the sheriff or any constable to require
the attendance of witnesses and the production of books, records, papers,
or other objects as may be necessary and proper for the purposes of a
Proceeding
[
proceeding
]. The subpoena may be issued
only
by [
the board itself,
] the
Executive Director or
her designee
[
executive director, or, during the pendency of a
hearing, the examiner
].
the board,
] the
Executive
Director and
[
executive director, or examiner
,] shall be
verified[
,
]
and
supported by a showing of good cause,
and shall specify
with reasonable particularity
[
as clearly
as possible
] the
Persons,
books, records, papers, or other
objects desired and the material and relevant facts to be proven by them.
board, executive director, or examiner
] only after:
Administrative Procedure Act (Tex. Gov't Code 2001.001
et seq.)
].
The
] taking and use of depositions
in any
Proceeding
[
proceeding
] shall be governed by
the
APA §§2001.094 - 2001.103
[
Administrative Procedure
Act (Tex. Gov't Code §§2001.001 et seq.)
].
Administrative Procedure Act (Tex. Gov't Code §§2001.001
et seq.)
], whichever is applicable.
Unless otherwise ordered, or
the Parties otherwise agree pursuant to §67.11 of this chapter (relating
to agreements to be in writing), discovery level 1 shall apply as defined
in Tex. R. Civ. P. 190.2.
.
]
the
General Appropriations Act
].
person
] is necessarily present as a witness
is set at $50. A witness who gives testimony in
an expert
[
a professional
] capacity may be paid an appearance fee of no more than
twice the standard fee.
The witness fee for a retained expert shall be
paid by the Party who retained the witness.
the Employees Retirement System of Texas
].
the Employees
Retirement System of Texas
] from the funds deposited by the
Party
[
person
] who requested the witness to appear.
Chapter 87.
DEFERRED COMPENSATION