Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 2. MENTAL RETARDATION AUTHORITY RESPONSIBILITIES
Subchapter C. CHARGES FOR COMMUNITY SERVICES
The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §§2.101 - 2.103 and 2.105 - 2.112, concerning purpose; application; definitions; accountability; determination of ability to pay; standard charges; billing procedures; payments, collections, and non-payment; monthly ability-to-pay fee schedule; training; and brochure for a person (or parent); and proposes the repeal of §§2.104 and 2.113 - 2.115, concerning principles, exhibit, references, and distribution, in Chapter 2, Mental Retardation Authority Responsibilities, Subchapter C, Charges for Community Services.
BACKGROUND AND PURPOSE
Because they originated at the Texas Department of Mental Health and Mental Retardation, the rules in Chapter 2, Subchapter C, currently contain references to both mental health and mental retardation services. The purpose of the proposal is to eliminate references related to mental health issues and tailor the remaining rule language exclusively to mental retardation services.
The proposal also streamlines DADS' process for updating a person's financial assessment. Instead of being required to annually update every person's financial assessment, the proposal will allow a mental retardation authority (MRA) to exclude certain persons whose Medicaid status indicates that they do not have an ability to pay for non-Medicaid services.
In addition, the proposal updates terminology and agency names and corrects rule cross-references to ensure that the rules reflect changes resulting from the consolidation of health and human services agencies in 2004 and updates the subchapter to make it consistent with other DADS rules.
SECTION-BY-SECTION SUMMARY
The amendments to §§2.101 - 2.103 and 2.105 - 2.112 and the repeal of §§2.104 and 2.113 - 2.115 update the rule by eliminating language and requirements related to mental health services.
In addition, the amendment to §2.102 clarifies and updates rule language, and deletes subsection (c), because subsection (a) already states that the rules apply to a parent of a person under age 18 years.
The amendment to §2.103 adds definitions for "DADS," "MMF," "MRA," "MR priority population," and "parent," and deletes the definitions of "local authority," "priority population," and "state MH facility." The amendment also clarifies rule language and updates terminology.
The amendment to §2.105 updates MRA accountability requirements, clarifies rule language, and updates terminology, agency references, and rule cross-references.
The amendment to §2.106 streamlines the process governing the determination of ability to pay, clarifies rule language, and updates terminology and rule cross-references.
The amendment to §2.108 updates terminology and an agency reference.
The amendment to §2.109 clarifies rule language and updates terminology, agency references, and rule cross-references.
The amendment to §2.110 states that the Monthly Ability-to-Pay Fee Schedule can be found on the DADS website and updates an agency reference.
The amendment to §2.111 updates MRA staff training requirements.
The repeal of §§2.104 and 2.113 - 2.115 deletes sections that are not necessary to have in rule and makes Subchapter C more consistent with the majority of DADS rules, which do not include references to regulations and statutes, or information about distributing copies of the completed rules.
FISCAL NOTE
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendments and repeal are in effect, enforcing or administering the amendments and repeal does not have foreseeable implications relating to costs or revenues of state or local governments.
SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS
DADS has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments and repeal, because the proposal imposes no new requirements on MRAs.
PUBLIC BENEFIT AND COSTS
Gary Jessee, DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years the amendments and repeal are in effect, the public benefit expected as a result of enforcing the amendments and repeal is an updated and clarified rule base that is more accurate and easier for the public and MRAs to use and understand.
Mr. Jessee anticipates that there will not be an economic cost to persons who are required to comply with the amendments. The amendments will not affect a local economy.
TAKINGS IMPACT ASSESSMENT
DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to Marcia Shultz at (512) 438-3532 in DADS' Access and Intake Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-026, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 026" in the subject line.
40 TAC §§2.101 - 2.103, 2.105 - 2.112
STATUTORY AUTHORITY
The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, §534.067, which requires DADS to establish a uniform fee collection policy for mental retardation authorities.
The amendments implement Texas Government Code, §531.0055, Texas Human Resources Code, §161.021, and Texas Health and Safety Code, §534.067.
§2.101.Purpose.
The purpose of this subchapter is to comply with [
the
]
Texas Health and Safety Code, §534.067, by establishing a uniform
fee collection policy for
an MRA
[
local authorities
]
that:
(1) - (3) (No change.)
§2.102.Application.
(a)
This subchapter applies to
an MRA
[
all
local authorities
] for community services contracted for through
the performance contract that the
MRA
[
authority
]
provides directly or through
a subcontractor
[
subcontractors
] to
a member
[
members
] of the
MR
priority
population. This subchapter also applies to
an adult person
[
persons
] in the
MR
priority population[
,
]
and
a parent of a person
[
parents of persons
]
under age 18 years in the
MR
priority population[
,
who are seeking or receiving services
].
(b) This subchapter does not apply to:
(1)
a program or service
[
programs
and services
] that
is
[
are
] prohibited
by statute or regulation from charging
a fee
[
fees
]
to
a person
[
persons
] served [
(e.g., Early
Childhood Intervention Program)
];
(2)
the
DADS In-Home and Family Support Program--Mental
Retardation
[
TDMHMR In-Home and Family Support Program
];
(3)
[
inpatient services in a state MH facility
and non-crisis
] residential services as described in the performance
contract; and
(4)
specialized services mandated by the Omnibus Budget
Reconciliation Act (OBRA) of 1987, as amended by OBRA 90, for
a
preadmission
screening and [
annual
] resident
review
[
reviews
] (PASARR) provided to
a
non-Medicaid eligible
person
[
persons
].
[
(c)
In this subchapter
all references to a parent means the requirement is applicable to
the parent of a person under age 18 years who is in the priority population
and who is seeking or receiving services.]
§2.103.Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) (No change.)
(2)
Community services or services--Except for [
inpatient
services in a state MH facility and non-crisis
] residential
services,
eligibility determination, and screening,
the
required and optional [
mental health and
] mental retardation
services described in the performance contract
.
[
,
including:
]
[
(A)
24-hour emergency
screening and rapid crisis stabilization services;]
[
(B)
community-based crisis
residential services or inpatient services in a mental health facility
that is not a state MH facility;]
[
(C)
community-based assessments,
including the development of interdisciplinary treatment plans, and
diagnosis and evaluation services;]
[
(D)
family support services,
including respite care;]
[
(E)
case management services
(service coordination);]
[
(F)
medication-related
services, including medication clinics, laboratory monitoring, medication
education, mental health maintenance education, and the provision
of medication; and]
[
(G)
psychosocial rehabilitation
programs, including social support activities, independent living
skills, and vocational training.]
(3) DADS--The Department of Aging and Disability Services.
(4)
[
(3)
] Extraordinary expenses--Major
medical or health related expenses, major casualty losses, and child
care expenses for the previous year or projections for the next year.
(5)
[
(4)
] Family members--
(A)
For an unmarried person under [
the
]
age [
of
] 18 years--The person, the person's parents, and
the dependents of the parents, if residing in the same household;
(B)
For an unmarried person age 18 years or older--The
person and
the person's
[
his/her
] dependents;
or
(C)
For a married person of any age--The person,
the
person's
[
his/her
] spouse, and their dependents.
(6)
[
(5)
] Gross income--Revenue
from all sources before taxes and other payroll deductions. The term
does not include child support received.
(7)
[
(6)
] Inability to pay--The
person's maximum monthly fee is zero and the person:
(A) does not have third-party coverage;
(B) has third-party coverage, but has exceeded the maximum benefit of the covered service(s) or the third-party coverage will not pay because the services needed by the person are not covered services; or
(C) has not identified payment for a needed service or services in an approved plan utilizing Social Security work incentive provisions (i.e., Plan to Achieve Self-Sufficiency; Impairment Related Work Expense).
(8)
[
(7)
] Income-based public
insurance--Government funded third-party coverage that bases eligibility
on income (i.e., CHIP and Medicaid).
[
(8)
Local authority--An
entity designated by the TDMHMR commissioner in accordance with the
Texas Health and Safety Code, §533.035(a).]
(9) MMF--Maximum monthly fee. A fee that is calculated in accordance with §2.106(b) of this chapter (relating to Determination of Ability to Pay).
(10) MRA--Mental retardation authority. An entity to which the Health and Human Services Commission's authority and responsibility described in Texas Health and Safety Code, §531.002(11) have been delegated.
(11) MR priority population--Groups of persons identified in the Health and Human Services Commission's current strategic plan as being most in need of mental retardation services.
(12) Parent--A biological or adoptive parent of a person under age 18 years.
(13)
[
(9)
] Performance contract--A
written agreement between
DADS and an MRA
[
TDMHMR
and a local authority
] for the provision of one or more functions
as described in [
the
] Texas Health and Safety Code, §533.035(a).
(14)
[
(10)
] Person--A person
in the
MR
priority population who is seeking or receiving
services through
an MRA
[
a local authority
].
[
(11)
Priority population--Those
groups of persons with mental illness or mental retardation identified
in TDMHMR's current strategic plan as being most in need of mental
health and mental retardation services.]
(15)
[
(12)
] Significant financial
change--Any change in the person's (or parent's) financial
status
as shown in the financial
documentation, as described in
§2.105(d)
of this subchapter
[
§412.105(d) of this title
]
(relating to Accountability), that affects the person's (or parent's)
ability to pay. Examples of a significant financial change are:
(A) a reduction in income due to the loss of a job or due to a reduction in hours worked on a job;
(B) an increase in income because of an inheritance or a salary increase;
(C) an increase or decrease in the number of family members;
(D) the gain or loss of third-party coverage; and
(E) an increase or decrease in extraordinary expenses.
(16)
[
(13)
] Standard charge--A
fixed price for a community service or unit of service.
[
(14)
State MH facility--A
state hospital or a state center with an inpatient component.]
(17)
[
(15)
] Team--
A person's
service planning team
[
The interdisciplinary team, multidisciplinary
team, or treatment team
].
(18)
[
(16)
] Third-party coverage--A
public or private payer of community services [
for a specific
person that is not the person
] (e.g., Medicaid, Medicare, private
insurance, CHIP, TRICARE).
§2.105.Accountability.
(a)
Prohibition from denying services.
An MRA
is
[
Local authorities are
] prohibited from denying
services [
to a person
]:
(1) to a person because of the person's inability to pay for the services;
(2) to a person in crisis , and the denial is because:
(A) - (C) (No change.)
(D)
the person had [
his/her
] services involuntarily
reduced or terminated for non-payment under
§2.109(d)
[
§412.109(d)
] of this title (relating to Payments, Collections,
and Non-payment); or
(3)
to a person
pending resolution of an
issue relating solely to payment for services, including failure of
the person (or parent) to comply with any requirement in
subsection
[
subsections
] (c), (d), (e),
or
[
and
] (g)
of this section.
(b)
Identifying funding sources.
An MRA must identify
and access
[
Local authorities are responsible for identifying
and accessing
] available funding sources other than
DADS
[
TDMHMR
], and
assist a person (or parent)
[
for
assisting persons (and parents)
] in identifying and accessing
available funding sources other than
DADS
[
TDMHMR
],
to pay for services. Available funding sources may include third-party
coverage, state and/or local governmental agency funds (e.g., crime
victims fund), Qualified Medicare Beneficiary (QMB) Program, [
indigent
pharmaceutical programs,
] or a trust that provides for the person's
need for community services
[
healthcare and rehabilitative
needs
].
(c)
Requirement for
a parent
[
parents
]
to enroll
a child
[
their children
] in income-based
public insurance.
A parent of a child
[
Parents of
children
] who may be eligible for Medicaid or the
Children's
[
Childrens
] Health Insurance Program (CHIP) must enroll
the
child
[
their children
] in Medicaid or CHIP or provide
documentation that
the child has
[
they have
]
been denied Medicaid or CHIP benefits or that
the child's
[
their
] Medicaid or CHIP enrollment is pending.
An MRA must
[
The local authority shall
] provide assistance as needed to facilitate
the enrollment process.
(d)
Financial documentation.
A person (or parent)
[
If requested by the local authority, persons (or parents)
] must
provide the following financial documentation:
(1) - (4) (No change.)
(e)
Authorizing third-party coverage payment to the
MRA
[
local authority
].
A person (or parent)
[
Persons (and parents)
] with third-party coverage must execute
an assignment of benefits authorizing third-party coverage payment
to the
MRA
[
local authority
].
(f) Failure to comply.
(1)
Except as provided by paragraph (2) of this subsection,
if the person (or parent) fails to comply with any requirement in
subsection
(c), (d), (e), or (g)
[
subsections (c)-(e)
] of this
section, then the
MRA must charge
[
local authority
will charge
] the person (or parent) the standard charge(s) for
services. If, within 30 days after the person (or parent) initially
failed to comply, the person (or parent) complies with the requirements,
then the
MRA must adjust
[
local authority will adjust
]
the person's account to retroactively reflect compliance.
(2)
The
MRA may
[
local authority will
]
not charge the person the standard charge(s) for services if the
MRA
[
local authority
] makes a decision,
which
[
based on a clinical determination that
] is documented and includes
input from the person's team, that the person's failure to comply
is related to the person's
functioning limitations
[
mental
illness or mental retardation
]. The
decision
[
clinical
determination
] must be reassessed at least
annually
[
every three months
]. If the
MRA
[
local authority
]
decides that a person's failure to comply is related to the person's
functioning limitations
[
mental illness or mental retardation
],
then the
MRA
[
local authority
] must develop
and implement a plan to reduce or eliminate the barriers related to
the person's failure to comply.
(g)
Requirement for
an
adult
person
[
persons
] to apply for
Supplemental Security Income (SSI)
[
SSI
] to become eligible for Medicaid.
An adult person
[
Adult persons
] who may be eligible for Medicaid must apply for
SSI
[
Supplemental Security Income (SSI)
] or provide
documentation that
the person has
[
they have
]
been denied SSI or that
the person's
[
their
]
SSI application is pending. The
MRA must provide
[
local
authority shall provide
] assistance as needed to facilitate
all aspects of the application process. [
If the adult person
is unable to act in accordance with the requirement because of the
person's mental illness or mental retardation, then the local authority
must develop and implement a plan to reduce or eliminate the barriers
related to the person's inability to act in accordance with the requirement.
]
§2.106.Determination of Ability to Pay.
(a)
Financial assessment. [
The local authority
must conduct and document a financial assessment for each person within
the first 30 days of services. The local authority must update each
person's financial assessment at least annually and whenever a significant
financial change (as defined) occurs as long as the person continues
to receive services. The financial assessment is accomplished using
the financial documentation listed in §412.105(d) of this title
(relating to Accountability), which represents the finances of the:
]
(1) An MRA must conduct and document a financial assessment for a person within 30 days after the person begins to receive services.
(2) Except for a Medicaid recipient who is receiving Supplemental Security Income (SSI) benefits but not receiving employment income, the MRA must update a person's financial assessment at least annually while the person is receiving services. The MRA must monitor the continuing availability of benefits for a person with income-based public insurance.
(3) The MRA must update a person's financial assessment if the person experiences a significant financial change.
(4) The financial assessment must be conducted using the financial documentation listed in §2.105(d) of this subchapter (relating to Accountability) that represents the finances of:
(A) the person who is age 18 years or older and the person's spouse; or
(B) the parents of the person who is under age 18 years.
[
(1)
person who is age
18 years or older and the person's spouse; or]
[
(2)
parents of the person
who is under age 18 years.]
(b)
MMF
[
Maximum monthly fee
].
A person's
MMF
[
maximum monthly fee
] is based
on the financial assessment and calculated using the Monthly Ability-To-Pay
Fee Schedule,
as
referenced
in §2.110 of this
subchapter (relating to Monthly Ability-To-Pay Fee Schedule)
[
as Exhibit A in §412.113 of this title (relating to Exhibit)
].
The calculation is based on the number of family members and annual
gross income, reduced by extraordinary expenses paid during the past
12 months or projected for the next 12 months. No other sliding scale
is used.
(1)
An MMF
[
A maximum monthly fee
]
that is greater than zero is established for
a person who is
[
persons who are
] determined as having an ability to pay. If
two or more members of the same family are receiving services, then
the
MMF
[
maximum monthly fee
] is for the family.
(2)
An MMF
[
A maximum monthly fee
]
of zero is established for
a person who is
[
persons
who are
] determined as having an inability to pay.
(c) Third-party coverage.
(1) (No change.)
(2) Third-party coverage that will not pay.
(A)
If the person's third-party coverage will not pay
for needed services because the
MRA
[
local authority
]
does not have an approved provider on its network, then the
MRA
must
[
local authority will
] propose to refer the
person to
the person's
[
his/her
] third-party
coverage to identify a provider for which the third-party coverage
will pay unless:
(i)
the
MRA
[
local authority
]
is identified as being responsible for providing court-ordered [
outpatient
] services to the person;
(ii)
the
MRA
[
local authority
]
is able to negotiate adequate payment for services with the person's
third-party coverage; or
(iii) (No change.)
(B)
If the
MRA
[
local authority
]
proposes to refer the person to
the person's
[
his/her
]
third-party coverage as described in paragraph (2)(A) of this subsection,
then the
MRA must
[
local authority will
] provide
written notification to the person (or parent) in accordance with
§2.109(e)(1)
of this subchapter
[
§412.109(e)(1) of this title
]
(relating to Payments, Collections, and Non-payment), which provides
an opportunity to appeal. The
MRA
[
local authority
]
must also comply with
§2.109(e)(2) - (3) of this subchapter
[
§412.109(e)(2) - (3)
] as initiated by the person (or parent).
(C)
If the
MRA
[
local authority
]
refers the person to [
his/her
] third-party coverage, then
the
MRA must
[
local authority will
] assist the
person (or parent) in identifying a provider for which the third-party
coverage will pay.
(D)
If a person who has been referred to [
his/her
]
third-party coverage is unable to identify or access needed services
from an approved provider or if access will be unduly delayed, then
the
MRA must
[
local authority will
]:
(i) (No change.)
(ii)
if [
clinically
] indicated, ensure the
provision of the needed services to the person pending resolution.
(E)
The
MRA must
[
local authority will
]
maintain documentation of:
(i) - (iii) (No change.)
(d)
Social Security work incentive provisions. A person
who identified payment for specific needed services in
the person's
[
his/her
] approved plan utilizing Social Security work incentive
provisions (i.e.,
Plan to Achieve Self-Sufficiency;
Impairment Related Work Expense
) is determined as having an
ability to pay for the specific services.
A person is
[
Persons
are
] not required to identify payment for any service for which
the person
[
they
] may be eligible as part of
the
person's
[
their
] approved plan for utilizing the
Social Security work incentive provisions.
(e)
Notification. After a financial assessment is conducted,
the
MRA
[
local authority
] must provide written
notification to the person
(or parent)
[
(or parents)
]
that includes:
(1) (No change.)
(2)
a copy of the financial assessment form [
that
is signed by the person (or parent)
] and a copy of the Monthly
Ability-to-Pay Fee Schedule, with the applicable areas indicated (i.e.,
annual gross income, number of family members);
(3)
the amount of the
MMF
[
maximum
monthly fee
];
(4)
the name and phone number of at least one
MRA
[
local authority
] staff who the person (or parent) may contact
during office hours to discuss the information contained in the written
notification; and
(5) (No change.)
§2.107.Standard Charges.
An MRA
[
Each local authority
] must establish,
at least annually, a reasonable standard charge for
a
[
each
] community service as indicated in the performance contract.
The standard charge must cover, at a minimum, the
MRA's
[
local authority's
] cost of ensuring the provision of the service.
§2.108.Billing Procedures.
(a) Monthly account.
(1)
The
MRA must
[
local authority will
]
maintain a monthly account for
a
[
each
] person
that lists all services provided to the person during the month and
the standard charges for the services. Each service listed
must
[
will
] indicate whether the service is:
(A) - (D) (No change.)
(2) (No change.)
(b)
Accessing funding sources. The
MRA
[
local
authority
] must access all available funding sources before
using
DADS
[
TDMHMR
] funds to pay for a person's
services. Funding sources may include third-party coverage, state
and/or local governmental agency funds (e.g., crime victims fund),
Qualified Medicare Beneficiary (QMB) Program, [
indigent pharmaceutical
programs,
] or a trust that provides for the person's
need
for community services
[
healthcare and rehabilitative needs
].
(c)
Billing third-party coverage. The
MRA bills
[
local authority will bill
] the person's third-party coverage
the monthly account amount for covered services. If the
MRA
[
local authority
] has negotiated a reimbursement amount with
the third-party coverage that is different from the monthly account
amount, then the
MRA
[
local authority
] may bill
the third-party coverage the negotiated reimbursement amount for covered
services.
(d)
Billing the person
(or parent)
[
(or
parents)
].
(1) No third-party coverage. If the monthly account amount for services not covered by third-party coverage:
(A)
exceeds the person's
MMF
[
maximum
monthly fee (MMF)
], then the amount is reduced to equal the
MMF and the
MRA
[
local authority
] bills
the
person
(or parent) the MMF; or
(B)
is less than the person's MMF, then the
MRA
[
local authority
] bills the person (or parent) the monthly account
amount for services not covered by third-party coverage.
(2)
Medicare third-party coverage. Nothing in this
paragraph is intended to conflict with any applicable law, rule, or
regulation with which
an MRA
[
a local authority
]
must comply.
(A) (No change.)
(B) If the total amount applied toward the person's MMF as described in paragraph (2)(A) of this subsection:
(i)
exceeds the person's MMF, then the amount is reduced
to equal the MMF and the
MRA
[
local authority
]
bills
the
person (or parent) the MMF; or
(ii)
is less than the person's MMF, then the
MRA
[
local authority
] bills the person (or parent) the total amount
applied toward the MMF.
(3) Non-Medicare third-party coverage.
(A)
Cost-sharing exceeds MMF. If the amount of all
applicable co-payments, co-insurance, and deductibles for services
listed in the monthly account as covered by non-Medicare third-party
coverage exceeds the person's MMF, then the
MRA
[
local
authority
] bills the person (or parent) all applicable co-payments,
co-insurance, and deductibles.
(B) Cost-sharing does not exceed MMF.
(i) (No change.)
(ii)
If the total amount applied toward the person's
MMF as described in paragraph
(3)(B)(i)
[
(3)(B)
]
of this subsection:
(I)
exceeds the person's MMF, then the amount is reduced
to equal the MMF and the
MRA
[
local authority
]
bills person (or parent) the MMF; or
(II)
is less than the person's MMF, then the
MRA
[
local authority
] bills the person (or parent) the total amount
applied toward the MMF.
(C)
Annual cost-sharing limit. If the person (or parent)
has reached
the person's
[
his/her
] annual cost-sharing
limit (i.e., maximum out-of-pocket expense) as verified by the non-Medicare
third-party coverage, then the
MRA must
[
local authority
will
] not bill the person (or parent) any co-payments, co-insurance,
or deductibles, as applicable to the annual cost-sharing limit, for
services covered by the non-Medicare third-party coverage for the
remainder of the policy-year.
(4) Social Security work incentive provisions.
(A)
If the person identified a payment amount for specific
services in
the person's
[
(B)
(No change.)
(C)
If the total amount applied toward the person's
MMF as described in paragraph (4)(B) of this subsection:
(i)
exceeds the person's MMF, then the amount is reduced
to equal the MMF and the
MRA
[
(ii)
is less than the person's MMF, then the
MRA
[
(e)
Statements.
(1)
The
MRA must
[
(A) - (E)
(No change.)
(2)
Unless requested otherwise, the
MRA may
[
(3)
Unless requested otherwise, the
MRA may
[
§2.109.Payments, Collections, and Non-payment.
(a)
Payment and collection.
(1)
A person (or parent) must
[
(2)
An MRA must make
[
(b)
Financial hardship. If a person (or parent) claims
financial hardship as provided in this subsection, then the
MRA
[
(1)
If a person (or parent) claims, and provides documentation,
that financial hardship prevents prompt payment of all charges owed,
then the
MRA
[
(2)
If a person (or parent) claims that financial hardship
prevents prompt payment of all charges owed, then the
MRA
[
(A) - (B)
(No change.)
(3)
(No change.)
(c)
Discontinuing charges to
a person (or parent)
[
(d)
Involuntary reduction or termination of services
for non-payment by person (or parent).
(1)
The
MRA must
[
(2)
If the
MRA
[
(A)
the proposed action
would result in a significant reduction in the person's functioning;
(B)
the proposed action
would put at risk the person's health, safety, or support system;
or
(C)
the MRA
[
(3)
If the
MRA
[
(A)
maintain [
(B)
(No change.)
(e)
Notification, Appeal, and Review.
(1)
Notification. The
MRA must
[
(2)
Appeal and appeal decision. The
MRA must conduct
the
appeal [
(3)
Review of appeal decision. If the person (or parent)
is dissatisfied with the appeal decision, then the person (or parent)
may request a review by the Office of Consumer
Rights and
Services
at DADS
[
(A)
A person (or parent) who requests a review may
choose to have the reviewer conduct the review:
(i)
by telephone conference with the person (or parent)
and a representative from the
MRA
[
(ii)
by making a decision based solely upon documents
provided by the person (or parent) and the
MRA
[
(B)
The review:
(i)
is
[
(ii)
includes
[
(iii)
results
[
(iv)
is the final step of the appeal process for involuntarily
reducing or terminating the person's services for non-payment and
for referring the person to [
(C)
Within five working days after the review, the
reviewer
sends
[
(D)
The
MRA must
[
(f)
Prohibition of financial penalties. The
MRA
must
[
(g)
Debt collection.
The MRA
[
(1)
The MRA
[
(A)
(No change.)
(B)
not harass, threaten, or intimidate
a person
or the person's family
[
(2)
The MRA must
[
§2.110.Monthly Ability-to-Pay Fee Schedule.
The Monthly Ability-To-Pay Fee Schedule,
which can be
found at www.dads.state.tx.us
[
§2.111.Training.
[
§2.112.Brochure for a Person (or Parent) [
(a)
DADS makes available on its website
[
(1) - (2)
(No change.)
(b)
An MRA
[
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 29, 2007.
TRD-200702781
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 438-3734
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in
the offices of the Department of Aging and Disability Services or
in the Texas Register office, Room 245, James Earl Rudder Building,
1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeal is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules
for the operation and provision of services by the health and human
services agencies, including DADS; Texas Human Resources Code, §161.021,
which provides that the Aging and Disability Services Council shall
study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of
services to persons who are served or regulated by DADS; and Texas
Health and Safety Code, §534.067, which requires DADS to establish
a uniform fee collection policy for mental retardation authorities.
The repeal implements Texas Government Code, §531.0055, Texas
Human Resources Code, §161.021, and Texas Health and Safety Code, §534.067.
§2.104.Principles.
§2.113.Exhibit.
§2.114.References.
§2.115.Distribution.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 29, 2007.
TRD-200702782
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 438-3734
Subchapter E. LICENSURE SURVEYS
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS),
an amendment to §97.527, concerning post-survey procedures, in
Chapter 97, Licensing Standards for Home and Community Support Services
Agencies.
BACKGROUND AND PURPOSE
The purpose of the amendment is to update the time frames and procedures
that a home and community support services agency (agency) must follow
to request an informal review of deficiencies (IRoD). The amendment
also allows an agency submitting an IRoD request form additional time
to submit a rebuttal letter and supporting documentation.
SECTION-BY-SECTION SUMMARY
The amendment to §97.527 requires an agency to postmark or
fax an IRoD request form to DADS within 10 days after the agency receives
official written notice of the survey findings. The amendment also
requires a rebuttal letter and supporting documentation to be received
by the DADS Survey and Certification Enforcement Unit within seven
days after the postmark or fax date of the IRoD request form.
In addition, the amendment adds language detailing what an agency
must include in a rebuttal letter and supporting documentation and
states that the written decision on the IRoD issued by the DADS Survey
and Certification Enforcement Unit is final.
FISCAL NOTE
Gordon Taylor, DADS Chief Financial Officer, has determined that,
for the first five years the proposed amendment is in effect, enforcing
or administering the amendment does not have foreseeable implications
relating to costs or revenues of state or local governments.
SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS
DADS has determined that there is no adverse economic effect on
small businesses or micro-businesses as a result of enforcing or administering
the amendment, because the proposal does not place any new requirements
on agencies that would cause them to alter their business practices.
PUBLIC BENEFIT AND COSTS
Veronda Durden, DADS Assistant Commissioner for Regulatory Services,
has determined that, for each year of the first five years the amendment
is in effect, the public benefit expected as a result of enforcing
the amendment is clearer direction and greater flexibility for an
agency in responding to a statement of violation or deficiency.
Ms. Durden anticipates that there will not be an economic cost
to persons who are required to comply with the amendment. The amendment
will not affect a local economy.
TAKINGS IMPACT ASSESSMENT
DADS has determined that this proposal does not restrict or limit
an owner's right to his or her property that would otherwise exist
in the absence of government action and, therefore, does not constitute
a taking under Texas Government Code, §2007.043.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to
Sylvia Trevino at (361) 878-3419 in DADS' Regulatory Services Division.
Written comments on the proposal may be submitted to Texas Register
Liaison, Legal Services-004, Department of Aging and Disability Services
W-615, P.O. Box 149030, Austin, TX 78714-9030 or street address 701
West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed
to
rulescomments@dads.state.tx.us.
To
be considered, comments must be submitted no later than 30 days after
the date of this issue of the
Texas Register.
The
last day to submit comments falls on a Sunday; therefore, comments
must be either (1) postmarked or shipped before the last day of the
comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS'
last working day of the comment period; or (3) faxed or e-mailed by
midnight on the last day of the comment period. When faxing or e-mailing
comments, please indicate "Comments on Proposed Rule 004" in the subject
line.
STATUTORY AUTHORITY
The amendment is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules
for the operation and provision of services by the health and human
services agencies, including DADS; Texas Human Resources Code, §161.021,
which provides that the Aging and Disability Services Council shall
study and make recommendations to the HHSC executive commissioner
and the DADS commissioner regarding rules governing the delivery of
services to persons who are served or regulated by DADS; and Texas
Health and Safety Code, Chapter 142, which authorizes DADS to license
and regulate home and community support services agencies.
The amendment implements Texas Government Code, §531.0055,
Texas Human Resources Code, §161.021, and Texas Health and Human
Safety Code, §§142.001 - 142.030.
§97.527.Post-Survey Procedures.
(a) - (j)
(No change.)
(k)
If an agency disagrees with the survey findings,
the agency may request an IRoD and submit additional written information
to refute a violation or deficiency to demonstrate compliance in an
informal setting.
(1)
(No change.)
(2)
To request an IRoD, an agency must
:
[
(A)
mail or fax a complete and accurate IRoD request
form to the address or fax number listed on the form, which
[
(B)
mail or fax a rebuttal letter
[
(C)
mail or fax a copy
of the IRoD request form, rebuttal letter, and supporting documentation
to the designated survey office within the same time frames each is
submitted to the DADS Survey and Certification Enforcement Unit.
(3)
An agency may not submit
information after the deadlines established in paragraph (2)(A) and
(B) of this subsection unless DADS requests additional information.
The agency's response to DADS' request for information must be received
within three working days after the request is made.
(4)
[
(5)
An agency must present
sufficient information to the DADS Survey and Certification Enforcement
Unit to support the agency's desired IRoD outcome.
(6)
The rebuttal letter
and supporting documentation must include:
(A)
the disputed deficiencies or violations;
(B)
the reason the deficiencies or violations
are disputed;
(C)
the desired outcome for each disputed
deficiency or violation; and
(D)
attachments from client records, applicable
policies and procedures, or other supporting documentation or information
that directly demonstrates that the deficiency or violation should
not have been cited.
(7)
The written decision
issued by DADS after the completion of its review is final.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 29, 2007.
TRD-200702780
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 438-3734
Chapter 800.
GENERAL ADMINISTRATION
Subchapter E. SANCTIONS
40 TAC §§800.152, 800.191 - 800.200
The Texas Workforce Commission (Commission) proposes
to amend the following sections of Chapter 800 relating to General
Administration:
Subchapter E, Sanctions, §800.152 and §800.191
The Commission proposes the following new sections to Chapter 800,
relating to General Administration:
Subchapter E, Sanctions, §§800.192 - 800.200
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed rule change is to establish streamlined
and administratively efficient appeals procedures for Local Workforce
Development Boards (Boards) sanction hearings.
Under a separate, but concurrent, rulemaking proposal, the Commission
is proposing the repeal of Chapter 823, General Hearings rules, and
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals rules. Certain sections of repealed Chapter 823 have been
modified and incorporated into this chapter, which sets forth procedures
for appeals of Board sanction determinations.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
(Note: Minor, nonsubstantive editorial changes are made that do
not change the meaning of the rules and, therefore, are not discussed
in the Explanation of Individual Provisions.)
SUBCHAPTER E. SANCTIONS
The Commission proposes amendments to Subchapter E, as follows:
§800.152. Definitions
Section 800.152 adds new definitions, which are retained with minor
modifications, from the concurrent repeal of Chapter 823.
Section 800.152(2) defines a "hearing" as an informal, orderly,
and readily available proceeding held before an impartial hearing
officer at which a party or hearing representative may present evidence
to show that the Agency's determination of sanctions shall be reversed,
affirmed, or modified.
Section 800.152(3) defines a "hearing officer" as an Agency employee
designated to conduct hearings and issue proposals for decisions.
Section 800.152(4) defines a "hearing representative" as any individual
authorized by a party to assist the party in presenting the party's
appeal. A hearing representative may be legal counsel or another individual.
Each party may have a hearing representative to assist in presenting
the party's appeal.
Section 800.152(8) defines a "party" as the person or entity with
the right to participate in a hearing authorized by applicable statute
or rule.
Certain subsections in §800.152 have been renumbered to accommodate
additions or deletions.
§800.191. Appeal
Section 800.191(b) adds that an appeal shall be in writing.
Section 800.191(c) clarifies that the Agency shall refer the request
for appeal to an impartial hearing officer. The requirement of the
hearing officer to receive oral and written evidence and to prepare
a written proposal for a decision to be submitted to the executive
director for a final decision is removed and relocated in new §800.197.
Section 800.191(d) states that the decision of the Agency's executive
director shall be final. This requirement is removed and relocated
in new §800.200.
New §800.191(d) provides that the Agency shall mail a written
notice of hearing to the Board (and its representative, if any), which
contains:
(1) the date, time, place, and nature of the hearing;
(2) the legal authority under which the hearing is to be held;
and
(3) a brief summary of the issues to be considered during the hearing.
§800.192. Hearing Procedures
New §800.192 sets forth procedures for conducting Board sanction
hearings.
Section 800.192(a) provides that the hearing must be held in person
in Austin, Texas, unless the parties agree to a telephonic hearing
or request a different location.
Section 800.192(b) requires that the hearing be conducted informally
to determine the substantial rights of the parties. This subsection
also states that all issues relevant to the appeal must be considered
and addressed, and may include:
(1) presentation of evidence;
(2) examination of witnesses and parties;
(3) additional evidence; and
(4) appropriate hearing behavior.
Section 800.192(c) states that:
(1) the hearing record must include the audio recording of the
proceeding and any other relevant evidence relied on by the hearing
officer, including documents and physical evidence entered as exhibits;
(2) the hearing record must be maintained according to federal
and state law; and
(3) the confidentiality of information contained in the hearing
record must be maintained according to federal and state law.
§800.193. Postponements, Continuances, and Withdrawals
New §800.193 authorizes the hearing officer to grant a hearing
postponement, continuance, or withdrawal.
Section 800.193(a) allows the hearing officer to grant a postponement
of the hearing for good cause, at the party's request.
Section 800.193(b) states that a continuance may be ordered at
the discretion of the hearing officer to consider additional, necessary
evidence or for any other reason the hearing officer deems appropriate.
Section 800.193(c) provides that a Board may withdraw an appeal
at any time prior to the issuance of the final decision.
§800.194. Evidence
New §800.194 sets forth the evidence procedures for hearings.
Section 800.194(a), Evidence Generally, provides that evidence,
including hearsay evidence, shall be admitted if it is relevant and
if in the judgment of the hearing officer it is the kind of evidence
on which reasonably prudent persons are accustomed to rely in the
conduct of their affairs. However, the hearing officer may exclude
evidence if its probative value is outweighed by the danger of unfair
prejudice, by confusion of the issues, or by reasonable concern for
undue delay, waste of time, or needless presentation of cumulative
evidence.
Section 800.194(b), Exchange of Exhibits, states that any documentary
evidence to be presented during a telephonic hearing shall be exchanged
with all parties with a copy given to the hearing officer in advance
of the hearing. Any documentary evidence to be presented at an in-person
hearing shall be exchanged at the hearing.
Section 800.194(c), Stipulations, states that parties, with the
consent of the hearing officer, may agree in writing to relevant facts.
The hearing officer may decide the appeal on the basis of such stipulations
or, at the hearing officer's discretion, may set the appeal for hearing
and take such further evidence as the hearing officer deems necessary.
Section 800.194(d), Experts and Evaluations, states that if relevant
and useful--testimony from an independent expert or a professional
evaluation from a source satisfactory to the parties and the Agency
may be ordered by the hearing officers, on their own motion, or at
a party's request. Any such expert or evaluation shall be at the expense
of one of the parties.
Section 800.194(e), Subpoenas, states that:
(1) The hearing officer may issue subpoenas to compel the attendance
of witnesses and the production of records. A subpoena may be issued
either at the request of a party or on the hearing officer's own motion.
(2) A party requesting a subpoena shall state the nature of the
information desired, including names of any witnesses and the records
that the requestor feels are necessary for the proper presentation
of the case.
(3) The request shall be granted only to the extent the records
or the testimony of the requested witnesses appears to be relevant
to the issues on appeal.
(4) A denial of a subpoena request shall be made in writing or
on the record, stating the reasons for such denial.
§800.195. Hearing Officer Independence and Impartiality
New §800.195 relates to the Agency's hearing officers' powers
and impartiality and the grounds and process for the disqualification
and withdrawal of hearing officers.
Section 800.195(a) provides that a hearing officer has all necessary
powers to conduct a full, fair, and impartial hearing. Hearing officers
shall remain independent and impartial in all matters regarding handling
of any issues during the pendency of a case and in issuing their written
proposals for decisions.
Section 800.195(b) specifies that a hearing officer shall be disqualified
if the hearing officer has a personal interest in the outcome of the
appeal or if the hearing officer directly or indirectly participated
in the determination on appeal. Any party may present facts to the
Agency in support of a request to disqualify a hearing officer.
Section 800.195(c) allows the hearing officer to withdraw from
a hearing to avoid the appearance of impropriety or partiality.
Section 800.195(d) provides that upon disqualification or withdrawal,
the Agency shall assign an alternate hearing officer to the case.
This alternate hearing officer is not bound by any findings or conclusions
made by the disqualified or withdrawn hearing officer.
§800.196. Ex Parte Communications
New §800.196 is intended to prevent improper communication
with hearing officers and to ensure that their decisions are based
solely on the evidence and arguments presented at the hearing. The
section states that:
(a) The hearing officer shall not participate in ex parte communications,
directly or indirectly, in any matter in connection with any substantive
issue, with any interested person or party. Likewise, no person shall
attempt to engage in ex parte communications with the hearing officer
on behalf of any interested person or party.
(b) If the hearing officer receives any such ex parte communication,
the other parties shall be given an opportunity to review that communication.
(c) Nothing shall prevent the hearing officer from communicating
with parties or their representatives about routine matters such as
requests for continuances or opportunities to inspect the file.
(d) The hearing officer may initiate communications with an Agency
employee who has not participated in a hearing or any determination
in the case for the limited purpose of using the special skills or
knowledge of the Agency and its staff in evaluating the evidence.
§800.197. Hearing Decision
New §800.197 sets out the Agency's procedures related to the
preparation of a written proposal for a decision.
Section 800.197(a) requires the hearing officer to promptly prepare
a written proposal for decision following the conclusion of the hearing.
Section 800.197(b) provides that the proposal for decision shall
be based exclusively on the evidence of record in the hearing and
on matters officially noticed in the hearing and state:
(1) a list of individuals who appeared at the hearing;
(2) the findings of fact and conclusions of law reached on the
issues; and
(3) the affirmation, reversal, or modification of the sanctions.
Section 800.197(c) provides that the proposal for decision shall
be submitted to the Agency's executive director for issuance of a
written decision on behalf of the Agency.
Section 800.197(d) provides that unless a party files a timely
motion for rehearing, the Agency may assume continuing jurisdiction
to modify or correct a decision until the expiration of 30 calendar
days from the mailing date of the decision.
§800.198. Motion for Reopening
New §800.198 sets forth the procedures for requesting a reopening
of a hearing if a party is not able to participate in a hearing.
Section 800.198(a) provides that a party who fails to appear at
a hearing may request to reopen the hearing within 30 calendar days
from the date the decision is mailed.
Section 800.198(b) states that the motion for reopening must be
in writing and detail the reason for failing to appear at the hearing.
Section 800.198(c) provides that the hearing officer may schedule
a hearing to consider granting the motion for reopening.
Section 800.198(d) allows that if the hearing officer determines
the party has shown good cause for failing to appear, the hearing
officer may grant the motion.
§800.199. Motion for Rehearing
New §800.199 sets forth the Agency's procedures for requesting
a rehearing and the conditions under which a rehearing may be granted.
Section 800.199(a) provides that a Board may file a motion for
rehearing within 30 days from the date the decision is mailed. A rehearing
shall be granted only for the presentation of new evidence.
Section 800.199(b) requires that a motion for rehearing be in writing
and set forth the new evidence for consideration.
Section 800.199(c) states that if the hearing officer determines
a rehearing is warranted, it shall be scheduled at a reasonable time
and place.
Section 800.199(d) requires the hearing officer to issue a written
proposal for decision in response to a timely filed motion for rehearing.
The proposal for decision shall be submitted to the Agency's executive
director for issuance of a final decision.
§800.200. Finality of Decision
New §800.200 sets forth the conditions under which the Agency's
decision is finalized.
Section 800.200(a) states that the decision of the executive director
is the final administrative decision of the Agency after the expiration
of 30 calendar days from the mailing date of the decision unless within
that time:
(1) a request for reopening is filed with the Agency;
(2) a request for rehearing is filed with the Agency; or
(3) the Agency assumes continuing jurisdiction to modify or correct
the decision.
Section 800.200(b) provides that any decision issued in response
to a request for reopening or rehearing or a modification or correction
issued by the Agency shall be final on the expiration of 30 calendar
days from the mailing date of the decision, modification, or correction.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that for
each year of the first five years the rules will be in effect, the
following statements will apply:
There are no additional estimated costs to the state and local
governments expected as a result of enforcing or administering the
rules.
There are no estimated reductions in costs to the state and to
local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state
or to local governments as a result of enforcing or administering
the rules.
There are no foreseeable implications relating to costs or revenue
of the state or local governments as a result of enforcing or administering
the rules.
There are no anticipated economic costs to persons required to
comply with the rules.
There is no anticipated adverse economic impact on small or microbusinesses
as a result of enforcing or administering the rules.
Mark Hughes, Director of Labor Market Information, has determined
that there is no significant negative impact upon employment conditions
in the state as a result of the rules.
Laurence M. Jones, Director, Workforce Development Division, has
determined that for each year of the first five years the rules are
in effect, the public benefit anticipated as a result of enforcing
the proposed rules will be to clarify the process for appealing Board
sanction determinations and to ensure that such appeals satisfy procedural
due process requirements.
The Agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the Agency's legal authority
to adopt.
PART IV. COORDINATION ACTIVITIES
Comments on the proposed rules may be submitted to TWC Policy Comments,
Workforce and UI Policy, 101 East 15th Street, Room 440T, Austin,
Texas 78778; faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days
from the date this proposal is published in the
Texas Register.
The rules are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities, and the Human Resources Code §44.002, regarding Administrative
Rules.
The rules will affect Texas Labor Code, Title 4, particularly Chapter
301 and 302, as well as Texas Government Code, Chapter 2308.
§800.152.Definitions.
The following words and terms when used in this chapter shall
have the following meanings, unless the context clearly indicates
otherwise.
(1)
Corrective Action Plan--A plan developed and imposed
by the Agency that requires a Board or other entity to take Agency-identified
actions within a specified time frame designed to correct specific
instances of noncompliance or other failures.
(2)
Hearing--An informal,
orderly, and readily available proceeding held before an impartial
hearing officer at which a party or hearing representative may present
evidence to show that the Agency's determination of sanctions shall
be reversed, affirmed, or modified.
(3)
Hearing officer--An
Agency employee designated to conduct hearings and issue proposals
for decision.
(4)
Hearing representative--Any
individual authorized by a party to assist the party in presenting
the party's appeal. A hearing representative may be legal counsel
or another individual. Each party may have a hearing representative
to assist in presenting the party's appeal.
(5)
[
(6)
[
(7)
[
(8)
Party--The person or
entity with the right to participate in a hearing authorized by applicable
statute or rule.
§800.191.Appeal.
(a)
A Board may appeal a Sanction Determination; however,
a recommendation to another entity by the Agency or Commission under §800.174
and §800.175 of this chapter, may not be appealed under this
section.
(b)
A request for appeal of a [
(c)
The Agency shall refer the request for appeal to
an impartial
[
(d)
The Agency shall mail
a notice of hearing to the Board as provided in §800.181(c) and
to its representative, if any. The notice of hearing shall be in writing
and include:
(1)
a statement of the date, time, place,
and nature of the hearing;
(2)
a statement of the legal authority under
which the hearing is to be held; and
(3)
a short and plain statement of the issues
to be considered during the hearing.
[
(a)
The sanction determination hearing shall be conducted
in person in Austin, Texas, unless the parties agree to a telephonic
hearing or request a different location.
(b)
The hearing shall be conducted informally and in
such manner as to ascertain the substantial rights of the parties.
All issues relevant to the appeal shall be considered and addressed,
and may include:
(1)
Presentation of Evidence. The parties to an appeal
may present evidence that is material and relevant, as determined
by the hearing officer. In conducting a hearing, the hearing officer
shall actively develop the record on the relevant circumstances and
facts to resolve all issues. To be considered as evidence in a decision,
any document or physical evidence must be entered as an exhibit at
the hearing.
(2)
Examination of Parties and Witnesses. The hearing
officer shall examine parties and any witnesses, and shall allow cross-examination
to the extent the hearing officer deems necessary to afford the parties
due process.
(3)
Additional Evidence. The hearing officer, with
or without notice to any of the parties, may take additional evidence
as deemed necessary, provided that a party shall be given an opportunity
to rebut the evidence if it is to be used against the party's interest.
(4)
Appropriate Hearing Behavior. All parties shall
conduct themselves in an appropriate manner. The hearing officer may
expel any individual, including a party, who fails to correct behavior
the hearing officer identifies as disruptive. After expulsion, the
hearing officer may proceed with the hearing and render a decision.
(c)
Records.
(1)
The hearing record shall include the audio recording
of the proceeding and any other relevant evidence relied on by the
hearing officer, including documents and other physical evidence entered
as exhibits.
(2)
The hearing record shall be maintained in accordance
with federal and state law.
(3)
Confidentiality of information contained in the
hearing record shall be maintained in accordance with federal and
state law.
§800.193.Postponements, Continuances, and Withdrawals.
(a)
The hearing officer may grant a postponement of
a sanction determination hearing for good cause at a party's request.
(b)
A continuance of a hearing may be ordered at the
discretion of the hearing officer to consider additional, necessary
evidence or for any other reason the hearing officer deems appropriate.
(c)
A Board may withdraw an appeal at any time prior
to the issuance of the final decision.
§800.194.Evidence.
(a)
Evidence Generally. Evidence, including hearsay
evidence, shall be admitted if it is relevant and if in the judgment
of the hearing officer it is the kind of evidence on which reasonably
prudent persons are accustomed to rely in the conduct of their affairs.
However, the hearing officer may exclude evidence if its probative
value is outweighed by the danger of unfair prejudice, by confusion
of the issues, or by reasonable concern for undue delay, waste of
time, or needless presentation of cumulative evidence.
(b)
Exchange of Exhibits. Any documentary evidence
to be presented during a telephonic hearing shall be exchanged with
all parties and a copy shall be provided to the hearing officer in
advance of the hearing. Any documentary evidence to be presented at
an in-person hearing shall be exchanged at the hearing.
(c)
Stipulations. The parties, with the consent of
the hearing officer, may agree in writing to relevant facts. The hearing
officer may decide the appeal based on such stipulations or, at the
hearing officer's discretion, may set the appeal for hearing and take
such further evidence as the hearing officer deems necessary.
(d)
Experts and Evaluations. If relevant and useful,
testimony from an independent expert or a professional evaluation
from a source satisfactory to the parties and the Agency may be ordered
by hearing officers, on their own motion, or at a party's request.
Any such expert or evaluation shall be at the expense of one or more
of the parties.
(e)
Subpoenas.
(1)
The hearing officer may issue subpoenas to compel
the attendance of witnesses and the production of records. A subpoena
may be issued either at the request of a party or on the hearing officer's
own motion.
(2)
A party requesting a subpoena shall state the nature
of the information desired, including names of any witnesses and the
records that the requestor feels are necessary for the proper presentation
of the case.
(3)
The request shall be granted only to the extent
the records or the testimony of the requested witnesses appears to
be relevant to the issues on appeal.
(4)
A denial of a subpoena request shall be made in
writing or on the record, stating the reasons for such denial.
§800.195.Hearing Officer Independence and Impartiality.
(a)
A hearing officer presiding over a hearing shall
have all powers necessary and appropriate to conduct a full, fair,
and impartial hearing. Hearing officers shall remain independent and
impartial in all matters regarding the handling of any issues during
the pendency of a case and in issuing their written proposals for
decision.
(b)
A hearing officer shall be disqualified if the
hearing officer has a personal interest in the outcome of the appeal
or if the hearing officer directly or indirectly participated in the
determination on appeal. Any party may present facts to the Agency
in support of a request to disqualify a hearing officer.
(c)
The hearing officer may withdraw from a hearing
to avoid the appearance of impropriety or partiality.
(d)
Following any disqualification or withdrawal of
a hearing officer, the Agency shall assign an alternate hearing officer
to the case. The alternate hearing officer shall not be bound by any
findings or conclusions made by the disqualified or withdrawn hearing
officer.
§800.196.Ex Parte Communications.
(a)
The hearing officer shall not participate in ex
parte communications, directly or indirectly, in any matter in connection
with any substantive issue, with any interested person or party. Likewise,
no person shall attempt to engage in ex parte communications with
the hearing officer on behalf of any interested person or party.
(b)
If the hearing officer receives any such ex parte
communication, the other parties shall be given an opportunity to
review any such ex parte communication.
(c)
Nothing shall prevent the hearing officer from
communicating with parties or their representatives about routine
matters such as requests for continuances or opportunities to inspect
the file.
(d)
The hearing officer may initiate communications
with an Agency employee who has not participated in a hearing or any
determination in the case for the limited purpose of using the special
skills or knowledge of the Agency and its staff in evaluating the
evidence.
§800.197.Hearing Decision.
(a)
Following the conclusion of the hearing, the hearing
officer shall promptly prepare a written proposal for decision.
(b)
The proposal for decision shall be based exclusively
on the evidence of record in the hearing and on matters officially
noticed in the hearing. The decision shall include:
(1)
a list of the individuals who appeared at the hearing;
(2)
the findings of fact and conclusions of law reached
on the issues; and
(3)
the affirmation, reversal, or modification of the
sanctions.
(c)
The proposal for decision shall be submitted to
the Agency's executive director for issuance of a written decision
on behalf of the Agency.
(d)
Unless a party files a timely motion for rehearing,
the Agency may assume continuing jurisdiction to modify or correct
a decision until the expiration of 30 calendar days from the mailing
date of the decision.
§800.198.Motion for Reopening.
(a)
If a party does not appear for a hearing, the party
may request a reopening of the hearing within 30 calendar days from
the date the decision is mailed.
(b)
The motion for reopening shall be in writing and
detail the reason for failing to appear at the hearing.
(c)
The hearing officer may schedule a hearing on whether
to grant the reopening.
(d)
The motion may be granted if the hearing officer
determines that the party has shown good cause for failing to appear
at the hearing.
§800.199.Motion for Rehearing.
(a)
A Board may file a motion for rehearing for the
presentation of new evidence within 30 days from the date the decision
is mailed. A rehearing shall be granted only for the presentation
of new evidence.
(b)
A motion for rehearing shall be in writing and
allege the new evidence to be considered.
(c)
If the hearing officer determines that the alleged
new evidence warrants a rehearing, a rehearing shall be scheduled
at a reasonable time and place.
(d)
The hearing officer shall issue a written proposal
for decision in response to a timely filed motion for rehearing. The
proposal for decision shall be submitted to the Agency's executive
director for issuance of a final decision.
§800.200.Finality of Decision.
(a)
The decision of the executive director is the final
administrative decision of the Agency after the expiration of 30 calendar
days from the mailing date of the decision, unless within that time:
(1)
a request for reopening is filed with the Agency;
(2)
a request for rehearing is filed with the Agency;
or
(3)
the Agency assumes continuing jurisdiction to modify
or correct the decision.
(b)
Any decision issued in response to a request for
reopening or rehearing or a modification or correction issued by the
Agency shall be final on the expiration of 30 calendar days from the
mailing date of the decision, modification, or correction.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 27, 2007.
TRD-200702700
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
Subchapter T. CAREER SCHOOLS HEARINGS
The Texas Workforce Commission (Commission) proposes
new Subchapter T, relating to Career Schools and Colleges, as follows:
Subchapter T, Career Schools Hearings, §§807.381 - 807.395
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed rule change is to set forth procedures
for the appeal and hearing process for those entities and individuals
subject to regulation by the Commission under Chapter 132 of the Texas
Education Code. Under a separate, but concurrent, rulemaking proposal,
the Commission is proposing the repeal of Chapter 823, General Hearings
rules, containing the hearings and appeals process for career schools
and colleges, which has been modified and incorporated into Chapter
807.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
The Commission proposes new Subchapter T, Career Schools Hearings,
as follows:
§807.381. Purpose
Section 807.381 states that the purpose of Subchapter T is to set
out the hearings process as authorized by Agency rules and Chapter
132 of the Texas Education Code.
§807.382. Definitions
Section 807.382 adds definitions, retained with minor modifications
from the concurrent repeal of Chapter 823, which are referenced throughout
Subchapter T.
Section 807.382(1) defines "appellant" as a party or the party's
authorized hearing representative who files an appeal from an appealable
determination or decision.
Section 807.382(2) defines "date of notice" as the date the notice
is received--unless good cause exists for the hearing officer to determine
otherwise.
Section 807.382(3) defines "date of request of hearing" as the
date on which the appellant or the hearing representative filed a
written notice of appeal with the Agency by hand delivery, facsimile,
or mail. If an appeal is mailed to the Agency, it is completed as
of the postmark date on the envelope containing the appeal request,
unless good cause exists for the hearing officer to determine otherwise.
If an appeal is hand delivered or faxed after 5 p.m., the date of
request must be the following day.
Section 807.382(4) defines "hearing" as an informal, orderly, and
readily available proceeding held before an impartial hearing officer.
A party or hearing representative may present evidence to show that
the Agency's determination should be reversed, affirmed, or modified.
Section 807.382(5) defines "hearing officer" as an Agency employee
designated to conduct impartial hearings and issue final administrative
decisions.
Section 807.382(6) defines "hearing representative" as any individual
authorized by a party to assist in presenting the party's appeal,
including legal counsel or another individual. Each party may have
a hearing representative to assist in presenting the party's appeal.
Section 807.382(7) defines "party" as the person or entity with
the right to participate in a hearing authorized in applicable statute
or rule.
§807.383. Information on Right of Appeal
Section 807.383 sets forth that an issuer of a determination shall
inform the career school applicant or any party directly aggrieved
by the determination of the right to a hearing. The notice shall explain
the procedure for an appeal, the applicant's or party's right of appeal,
and the right to be represented by others, including legal counsel.
§807.384. Request for Hearing
Section 807.384 sets forth procedures for requesting a hearing.
Section 807.384(a) provides that the party seeking review of a
determination under this subchapter relating to career school hearings
shall request a hearing in writing within 15 days after receipt of
notice of the determination.
Section 807.384(b) states that the request shall be addressed as
provided in the determination, state the nature of the determination,
the name and identifying information of the requesting party, and
a request that the determination be reviewed.
Section 807.384(c) specifies that the request may include an explanation
of why the determination should be changed, although this is not a
jurisdictional requirement.
§807.385. Setting of Hearing
Section 807.385 sets forth the Agency requirements for setting
a hearing.
Section 807.385(a) states that upon receipt of the request for
a hearing, the Agency shall promptly mail a notice of hearing that
sets the hearing for a reasonable time and place within 30 days from
the receipt of the request.
Section 807.385(b) requires that the notice of hearing be in writing
and include:
(1) a statement of the date, time, place, and nature of the hearing;
(2) a statement of the legal authority under which the hearing
will be held; and
(3) a short and plain statement of the issues that will be considered
during the hearing.
Section 807.385(c) requires that the notice of hearing be issued
at least 10 days before the date of the hearing unless a shorter period
is permitted by statute.
Section 807.385(d) provides that the hearing notice shall state
whether the hearing will be conducted by telephone or in-person. The
notice also shall identify the location of an in-person hearing.
Section 807.385(e) specifies that parties needing special accommodations,
including a bilingual or sign language interpreter, may request such
before the setting of the hearing, if possible, or as soon as practical.
§807.386. Hearing Officer Independence and Impartiality
Section 807.386 sets out the powers and independence of hearing
officers and the grounds and process for the disqualification and
withdrawal of hearing officers.
Section 807.386(a) provides that a hearing officer has all necessary
powers to conduct a full, fair, and impartial hearing. Hearing officers
are to remain independent and impartial in all matters relating to
active cases and in issuing their decisions.
Section 807.386(b) specifies that a hearing officer shall be disqualified
if he or she has a personal interest in the outcome of the appeal
or directly or indirectly participated in the determination on appeal.
Any party may present facts to the Agency in support of a request
to disqualify a hearing officer.
Section 807.386(c) allows the hearing officer to withdraw from
a hearing to avoid the appearance of impropriety or partiality.
Section 807.386(d) provides that upon disqualification or withdrawal,
the Agency shall assign an alternate hearing officer. This alternate
hearing officer is not bound by any findings or conclusions made by
the disqualified or withdrawn hearing officer.
§807.387. Hearing Procedures
Section 807.387 sets out the general procedures for a hearing.
Section 807.387(a) specifies that hearings shall be conducted in
person in Austin, Texas, unless the parties agree to a telephonic
hearing or request a different location.
Section 807.387(b)(1) - (4) specifies that all hearings shall be
conducted informally and in such a manner as to ascertain the substantial
rights of the parties. All issues relevant to the appeal shall be
considered and addressed, and may include:
(1) presentation of evidence;
(2) examination of parties and witnesses;
(3) additional evidence; and
(4) appropriate hearing behavior.
Section 807.387(c)(1) - (3), Records, states that:
(1) the hearing record shall include the audio recording of the
proceedings and any other relevant evidence relied on by the hearing
officer, including documents and other physical evidence entered as
exhibits;
(2) the hearing record shall be maintained in accordance with federal
and state law; and
(3) confidentiality of information contained in the hearing record
shall be maintained in accordance with federal and state law.
§807.388. Postponements, Continuances, and Withdrawals
Section 807.388 authorizes the hearing officer to grant a postponement,
continuance, or withdrawal.
Section 807.388(a) allows the hearing officer to grant a postponement
of a hearing for good cause at a party's request.
Section 807.388(b) states that a continuance may be ordered at
the discretion of the hearing officer in order to consider additional,
necessary evidence or for any other reason deemed appropriate by the
hearing officer.
Section 807.388(c) provides that a party may withdraw its appeal
at any time before the final decision is issued.
§807.389. Evidence
Section 807.389 sets forth the evidence procedures for hearings.
Section 807.389(a), Evidence Generally, provides the standard for
the admissibility of evidence, specifying that hearsay evidence may
be admitted. However, the hearing officer has the authority to exclude
relevant evidence to ensure fairness or to prevent undue delay, waste
of time, or needless presentation of cumulative evidence.
Section 807.389(b), Exchange of Exhibits, states that any documentary
evidence to be presented during a telephonic hearing shall be exchanged
with all parties with a copy given to the hearing officer in advance
of the hearing. Documentary evidence to be presented at an in-person
hearing shall be exchanged at the hearing.
Section 807.389(c), Stipulations, states that parties to an appeal,
with the consent of the hearing officer, may agree in writing to the
relevant facts involved. The hearing officer may decide the appeal
based on such stipulation or, at the hearing officer's discretion,
may set the appeal for hearing and take such further evidence deemed
necessary.
Section 807.389(d), Experts and Evaluations, allows the hearing
officer to order--or a party may request, if relevant and useful--an
independent expert or a professional evaluation from a source satisfactory
to the parties and the Agency. Such expert or evaluation shall be
at the expense of the party(ies).
Section 807.389(e), Subpoenas, provides that:
(1) The hearing officer may issue subpoenas to compel the attendance
of witnesses and the production of records. A subpoena may be issued
either at the request of a party or on the hearing officer's own motion.
(2) A party requesting a subpoena shall state the nature of the
information desired, including names of any witnesses and the records
that the requestor feels are necessary for the proper presentation
of the case.
(3) The request shall be granted only to the extent the records
or the testimony of the requested witnesses appears to be relevant
to the issues on appeal.
(4) A denial of a subpoena request shall be made in writing or
on the record, stating the reasons for such denial.
§807.390. Ex Parte Communications
Section 807.390(a) provides that the hearing officer shall not
participate in ex parte communications, directly or indirectly, in
any matter in connection with any substantive issue, with any interested
person or party. Likewise, no person shall attempt to engage in ex
parte communications with the hearing officer on behalf of any interested
person or party.
Section 807.390(b) provides that if any such ex parte communication
is received, the other parties should be given the opportunity to
review the ex parte communication.
Section 807.390(c) specifies that hearing officers may communicate
with parties or representatives about procedural matters.
Section 807.390(d) provides that a hearing officer may communicate
with Agency personnel who are not otherwise involved in a case for
the limited purpose of using the special skills or knowledge of the
Agency and its staff in evaluating the evidence.
§807.391. Change in Determination
Section 807.391 sets out that the original issuer of the determination,
which a party has appealed, may change the determination that is the
basis of the appeal at any time up to the issuance of a decision by
the hearing officer.
§807.392. Hearing Decision
Section 807.392 sets forth the time frame for and the content of
a decision issued by a hearing officer under this subchapter.
Section 807.392(a) requires the hearing officer to prepare a written
decision promptly after the hearing ends on behalf of the Agency.
Section 807.392(b)(1) - (3) provides that the decision shall be
based exclusively on the evidence of record in the hearing and matters
officially noticed in the hearing, and shall include:
(1) a list of the individuals who appeared at the hearing;
(2) the findings of fact and conclusions of law reached on the
issues; and
(3) the affirmation, reversal, or modification of the determination.
Section 807.392(c) states that unless a party files a timely motion
for a rehearing, the Agency may assume continuing jurisdiction to
modify or correct a hearing decision until the expiration of 30 calendar
days from the mailing date of the hearing decision.
§807.393. Motion for Reopening
Section 807.393 sets forth the time frame and requirements for
a motion for the reopening of a hearing.
Section 807.393(a) provides that if a party does not appear for
a hearing, the party may request the reopening of the hearing within
30 calendar days from the date the decision is mailed.
Section 807.393(b) states that the motion shall be in writing and
detail the reason for failing to appear at the hearing.
Section 807.393(c) provides that the Agency may schedule a hearing
on whether to grant the reopening.
Section 807.393(d) allows that a motion may be granted if the hearing
officer determines that the party has shown good cause for failing
to appear at the hearing.
§807.394. Motion for Rehearing
Section 807.394 sets forth the time frame and requirements for
a motion for rehearing.
Section 807.394(a) states that a party has 30 calendar days from
the date the decision is mailed to file a motion for rehearing. A
rehearing may be granted only for the presentation of new evidence.
Section 807.394(b) requires that a motion for rehearing be in writing
and allege the new evidence to be considered. The party must show
a compelling reason why the evidence was not presented at the hearing.
Section 807.394(c) states that if the hearing officer determines
that the alleged, new evidence warrants a rehearing, a hearing shall
be scheduled at a reasonable time and place.
Section 807.394(d) requires that the hearing officer issue a written
decision in response to a timely filed motion for rehearing.
Section 807.394(e) states that the Agency may assume continuing
jurisdiction to modify, correct, or reform a decision until the expiration
of 30 calendar days from the mailing date of the hearing decision.
§807.395. Finality of Decision
Section 807.395 sets forth the conditions under which the decision
of the hearing officer is the final decision of the Agency, and gives
the Agency the discretion to assume continuing jurisdiction.
Section 807.395(a) states that the decision of the hearing officer
becomes the final decision of the Agency after the expiration of 30
calendar days from the mailing date of the decision unless within
that time:
(1) a request for reopening is filed with the Agency;
(2) a request for rehearing is filed with the Agency; or
(3) the Agency assumes continuing jurisdiction to modify or correct
the decision.
Section 807.395(b) provides that any decision issued in response
to a request for a reopening or rehearing or a modification or correction
issued by the Agency shall be final on the expiration of 30 calendar
days from the mailing date of the decision, modification, or correction.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that for
each year of the first five years the rules will be in effect, the
following statements will apply:
There are no additional estimated costs to the state and local
governments expected as a result of enforcing or administering the
rules.
There are no estimated reductions in costs to the state and to
local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state
or to local governments as a result of enforcing or administering
the rules.
There are no foreseeable implications relating to costs or revenue
of the state or local governments as a result of enforcing or administering
the rules.
There are no anticipated economic costs to persons required to
comply with the rules.
There is no anticipated adverse economic impact on small or microbusinesses
as a result of enforcing or administering the rules.
Mark Hughes, Director of Labor Market Information, has determined
that there is no significant negative impact upon employment conditions
in the state as a result of the rules.
Laurence M. Jones, Director, Workforce Development Division, has
determined that for each year of the first five years the rules are
in effect, the public benefit anticipated as a result of enforcing
the proposed rules will be to clarify the hearing process for career
schools, career school applicants, and individuals subject to Chapter
132 of the Texas Education Code.
The Agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the Agency's legal authority
to adopt.
PART IV. COORDINATION ACTIVITIES
Comments on the proposed rules may be submitted to TWC Policy Comments,
Workforce and UI Policy, 101 East 15th Street, Room 440T, Austin,
Texas 78778; faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days
from the date this proposal is published in the
Texas Register.
The new rules are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities.
The new rules affect Title 4, Texas Labor Code, particularly Chapters
301 and 302, as well as Texas Education Code, Chapter 132.
§807.381.Purpose.
This subchapter provides a hearing process to the extent authorized
by Chapter 132 of the Texas Education Code and the rules administered
by the Agency.
§807.382.Definitions.
The following words and terms, when used in this chapter, have
the following meanings, unless the context clearly indicates otherwise.
(1)
Appellant--The party or the party's authorized
hearing representative who files an appeal from an appealable determination
or decision.
(2)
Date of notice--The date the notice is received,
unless good cause exists for the hearing officer to determine otherwise.
(3)
Date of request of hearing--The date on which the
appellant or the hearing representative filed a written notice of
appeal with the Agency by hand delivery, facsimile, or mail. If an
appeal is mailed to the Agency, then the appeal is perfected as of
the postmark date on the envelope containing the appeal request unless
good cause exists for the hearing officer to determine otherwise.
If an appeal is delivered by hand or facsimile after 5 p.m., the date
of request shall be the next day.
(4)
Hearing--An informal, orderly, and readily available
proceeding held before an impartial hearing officer. A party or hearing
representative may present evidence to show that the Agency's determination
should be reversed, affirmed, or modified.
(5)
Hearing officer--An Agency employee designated
to conduct impartial hearings and issue final administrative decisions.
(6)
Hearing representative--Any individual authorized
by a party to assist the party in presenting the party's appeal. A
hearing representative may be legal counsel or another individual.
Each party may have a hearing representative to assist in presenting
the party's appeal.
(7)
Party--The person or entity with the right to participate
in a hearing authorized in applicable statute or rule.
§807.383.Information on Right of Appeal.
An issuer of a determination shall inform the career school
applicant or any party directly aggrieved by the determination of
the right to a hearing. The notice shall explain the procedure for
an appeal, the party's right of appeal, and the right to be represented
by others, including legal counsel.
§807.384.Request for Hearing.
(a)
The party seeking review of a determination under
this subchapter relating to career schools hearings shall request
a hearing in writing within 15 days after receipt of the notice of
determination.
(b)
The request shall be addressed as provided in the
determination and state the nature of the determination, the name
and identifying information of the requesting party, and a request
that the determination be reviewed.
(c)
The request may include an explanation of why the
determination should be changed; however, this is not a jurisdictional
requirement.
§807.385.Setting of Hearing.
(a)
Upon receipt of request for a hearing, the Agency
shall promptly mail a notice of hearing that sets the hearing for
a reasonable time and place within 30 days from receipt of the request
for a hearing.
(b)
The notice of hearing shall be in writing and include
a:
(1)
statement of the date, time, place, and nature
of the hearing;
(2)
statement of the legal authority under which the
hearing is to be held; and
(3)
short and plain statement of the issues to be considered
during the hearing.
(c)
The notice of hearing shall be issued at least
10 days before the date of the hearing unless a shorter period is
permitted by statute.
(d)
The hearing notice shall state whether the hearing
shall be conducted by telephone or in-person. The hearing notice shall
also include the location of an in-person hearing.
(e)
Parties needing special accommodations, including
a bilingual or sign language interpreter, may request such before
the setting of the hearing, if possible, or as soon as practical.
§807.386.Hearing Officer Independence and Impartiality.
(a)
A hearing officer presiding over a hearing shall
have all powers necessary and appropriate to conduct a full, fair,
and impartial hearing. Hearing officers shall remain independent and
impartial in all matters regarding the handling of any issues during
the pendency of a case and in issuing their written decisions.
(b)
A hearing officer shall be disqualified if the
hearing officer has a personal interest in the outcome of the appeal
or if the hearing officer directly or indirectly participated in the
determination on appeal. Any party may present facts to the Agency
in support of a request to disqualify a hearing officer.
(c)
The hearing officer may withdraw from a hearing
to avoid the appearance of impropriety or partiality.
(d)
Following any disqualification or withdrawal of
a hearing officer, the Agency shall assign an alternate hearing officer
to the case. The alternate hearing officer shall not be bound by any
findings or conclusions made by the disqualified or withdrawn hearing
officer.
§807.387.Hearing Procedures.
(a)
The hearing shall be conducted in person in Austin,
Texas, unless the parties agree to a telephonic hearing or request
a different location.
(b)
The hearing shall be conducted informally and in
such a manner as to ascertain the substantial rights of the parties.
All issues relevant to the appeal shall be considered and addressed,
and may include:
(1)
Presentation of Evidence. The parties to an appeal
may present evidence that is material and relevant, as determined
by the hearing officer. In conducting a hearing, the hearing officer
shall actively develop the record on the relevant circumstances and
facts to resolve all issues. To be considered as evidence in a decision,
any document or physical evidence must be entered as an exhibit at
the hearing.
(2)
Examination of Parties and Witnesses. The hearing
officer shall examine parties and any witnesses and shall allow cross-examination
to the extent the hearing officer deems necessary to afford the parties
due process.
(3)
Additional Evidence. The hearing officer, with
or without notice to any of the parties, may take additional evidence
as deemed necessary, provided that a party shall be given an opportunity
to rebut the evidence if it is to be used against the party's interest.
(4)
Appropriate Hearing Behavior. All parties shall
conduct themselves in an appropriate manner. The hearing officer may
expel any individual or party who fails to correct behavior the hearing
officer identifies as disruptive. After expulsion, the hearing officer
may proceed with the hearing and render a decision.
(c)
Records
(1)
The hearing record shall include the audio recording
of the proceeding and any other relevant evidence relied on by the
hearing officer, including documents and other physical evidence entered
as exhibits.
(2)
The hearing record shall be maintained in accordance
with federal and state law.
(3)
Confidentiality of information contained in the
hearing record shall be maintained in accordance with federal and
state law.
§807.388.Postponements, Continuances, and Withdrawals.
(a)
The hearing officer may grant a postponement of
a hearing for good cause at a party's request.
(b)
A continuance of a hearing may be ordered at the
discretion of the hearing officer in order to consider additional,
necessary evidence or for any other reason the hearing officer deems
appropriate.
(c)
A party may withdraw an appeal at any time prior
to the issuance of the final decision.
§807.389.Evidence.
(a)
Evidence Generally. Evidence, including hearsay
evidence, shall be admitted if it is relevant and if in the judgment
of the hearing officer it is the kind of evidence on which reasonably
prudent persons are accustomed to rely in the conduct of their affairs.
However, the hearing officer may exclude evidence if its probative
value is outweighed by the danger of unfair prejudice, by confusion
of the issues, or by reasonable concern for undue delay, waste of
time, or needless presentation of cumulative evidence.
(b)
Exchange of Exhibits. Any documentary evidence
to be presented during a telephonic hearing shall be exchanged with
all parties and a copy shall be provided to the hearing officer in
advance of the hearing. Any documentary evidence to be presented at
an in-person hearing shall be exchanged at the hearing.
(c)
Stipulations. The parties, with the consent of
the hearing officer, may agree in writing to relevant facts. The hearing
officer may decide the appeal based on such stipulations or, at the
hearing officer's discretion, may set the appeal for hearing and take
such further evidence as the hearing officer deems necessary.
(d)
Experts and Evaluations. If relevant and useful,
testimony from an independent expert or a professional evaluation
from a source satisfactory to the parties and the Agency may be ordered
by hearing officers, on their own motion or at a party's request.
Any such expert or evaluation shall be at the expense of one or more
of the parties.
(e)
Subpoenas.
(1)
The hearing officer may issue subpoenas to compel
the attendance of witnesses and the production of records. A subpoena
may be issued either at the request of a party or on the hearing officer's
own motion.
(2)
A party requesting a subpoena shall state the nature
of the information desired, including names of any witnesses and the
records that the requestor feels are necessary for the proper presentation
of the case.
(3)
The request shall be granted only to the extent
the records or the testimony of the requested witnesses appears to
be relevant to the issues on appeal.
(4)
A denial of a subpoena request shall be made in
writing or on the record, stating the reasons for such denial.
§807.390.Ex Parte Communications.
(a)
The hearing officer shall not participate in ex
parte communications, directly or indirectly, in any matter in connection
with any substantive issue, with any interested person or party. Likewise,
no person shall attempt to engage in ex parte communications with
the hearing officer on behalf of any interested person or party.
(b)
If the hearing officer receives any such ex parte
communication, the other parties shall be given an opportunity to
review any such ex parte communication.
(c)
Nothing shall prevent the hearing officer from
communicating with parties or their representatives about routine
matters such as requests for continuances or opportunities to inspect
the file.
(d)
The hearing officer may initiate communications
with an Agency employee who has not participated in a hearing or any
determination in the case for the limited purpose of using the special
skills or knowledge of the Agency and its staff in evaluating the
evidence.
§807.391.Change in Determination.
The issuer of the determination may change the determination
any time before the hearing officer issues the decision. Despite the
issuer changing the determination, the parties may proceed with the
hearing.
§807.392.Hearing Decision.
(a)
Following the conclusion of the hearing, the hearing
officer shall promptly prepare a written decision on behalf of the
Agency.
(b)
The decision shall be based exclusively on the
evidence of record in the hearing and on matters officially noticed
in the hearing. The decision shall include:
(1)
a list of the individuals who appeared at the hearing;
(2)
the findings of fact and conclusions of law reached
on the issues; and
(3)
the affirmation, reversal, or modification of the
determination.
(c)
Unless a party files a timely motion for rehearing,
the Agency may assume continuing jurisdiction to modify or correct
a hearing decision until the expiration of 30 calendar days from the
mailing date of the hearing decision.
§807.393.Motion for Reopening.
(a)
If a party does not appear for a hearing, the party
may request the reopening of the hearing within 30 calendar days from
the date the decision is mailed.
(b)
The motion for reopening shall be in writing and
detail the reason for failing to appear at the hearing.
(c)
The Agency may schedule a hearing on whether to
grant the reopening.
(d)
The motion may be granted if the hearing officer
determines that the party has shown good cause for failing to appear
at the hearing.
§807.394.Motion for Rehearing.
(a)
A party has 30 calendar days from the date the
decision is mailed to file a motion for rehearing. A rehearing shall
be granted only for the presentation of new evidence.
(b)
A motion for rehearing shall be in writing and
allege the new evidence to be considered. The party shall show a compelling
reason why this evidence was not presented at the hearing.
(c)
If the hearing officer determines that the alleged,
new evidence warrants a rehearing, a hearing shall be scheduled at
a reasonable time and place.
(d)
The hearing officer shall issue a written decision
in response to a timely filed motion for rehearing.
(e)
The Agency may assume continuing jurisdiction to
modify, correct, or reform a decision until the expiration of 30 calendar
days from the date of mailing of the hearing decision.
§807.395.Finality of Decision.
(a)
The decision of the hearing officer is the final
decision of the Agency after the expiration of 30 calendar days from
the mailing date of the decision unless within that time:
(1)
a request for reopening is filed with the Agency;
(2)
a request for rehearing is filed with the Agency;
or
(3)
the Agency assumes continuing jurisdiction to modify
or correct the decision.
(b)
Any decision issued in response to a request for
reopening or rehearing or a modification or correction issued by the
Agency shall be final on the expiration of 30 calendar days from the
mailing date of the decision, modification, or correction.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 27, 2007.
TRD-200702701
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
The Texas Workforce Commission (Commission) proposes to amend
the following section of Chapter 809 relating to Child Care Services:
Subchapter D. Parent Rights and Responsibilities, §809.74
The Commission proposes the repeal of the following subchapter
to Chapter 809 relating to Child Care Services in its entirety:
Subchapter G. Appeal Procedures
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed rule change is to establish detailed
and consistent procedures for complaints, hearings, and appeals related
to workforce services administered by Local Workforce Development
Boards (Boards). Texas Labor Code, §302.065, directs the Commission
to integrate the administration of four federal block grant programs
with the goal of streamlining the delivery of services provided in
the local career development one-stops. The Commission expanded this
integration to state-funded workforce services, including examining
the existing complaints and appeals processes for workforce services
administered by the Boards. An absence of unified and integrated rules
on complaints, hearings, and appeals related to workforce services
makes the existing rules difficult to understand or interpret consistently
and works as a barrier to integrating workforce services.
To maintain uniformity and consistency across all Board-administered
workforce services and to protect due process rights of Texas Workforce
Center customers, in a separate but concurrent, rulemaking proposal,
the Commission is proposing the repeal of Chapter 823, General Hearings
rules, and is proposing new Chapter 823, Integrated Complaints, Hearings,
and Appeals rules. New Chapter 823 requires Boards to establish local
policies for filing complaints, to provide opportunities for informal
resolutions, and to establish procedures for Board hearings and appeals.
The Commission has reviewed sections of Chapter 809 relating to
complaints or grievances, local-level appeals, and state-level hearings.
The Commission proposes to repeal these sections and incorporate similar
processes related to complaints, hearings, and appeals in new Chapter
823.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
(Note: Minor editorial changes are made that do not change the
meaning of the rules and, therefore, are not discussed in the Explanation
of Individual Provisions.)
SUBCHAPTER D. PARENT RIGHTS AND RESPONSIBILITIES
The Commission proposes amendments to Subchapter D, as follows:
§809.74. Parent Appeal Rights
Under a separate but concurrent rulemaking proposal, the Commission
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals, which comprises the complaint, hearing, and appeal procedures
for all Board-administered workforce services, including appeal procedures
set forth in Subchapter G of this chapter. Therefore, references to
"Subchapter G of this chapter" contained in §809.74(a), (c),
(d), and (e) are removed and replaced by references to "Chapter 823
of this title."
SUBCHAPTER G. APPEAL PROCEDURES
The Commission proposes the repeal of Subchapter G, as follows:
Under a separate but concurrent, rulemaking proposal, the Commission
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals, which comprises the complaint, hearing, and appeal procedures
for all Board-administered workforce services, including the information
in the following sections.
§809.131. Board Review
Section 809.131 is repealed and the information is relocated in
new Chapter 823.
§809.132. Appeals to the Commission
Section 809.132 is repealed and the information is relocated in
new Chapter 823.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that, for
each year of the first five years the proposed rule amendments will
be in effect, the following statements will apply:
There are no additional estimated costs to the state and local
governments expected as a result of enforcing or administering the
rules.
There are no estimated reductions in costs to the state and to
local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state
or to local governments as a result of enforcing or administering
the rules.
There are no foreseeable implications relating to costs or revenue
of the state or local governments as a result of enforcing or administering
the rules.
There are no anticipated economic costs to persons required to
comply with the rules.
There is no anticipated adverse economic impact on small or microbusinesses
as a result of enforcing or administering the rules.
Mark Hughes, Director of Labor Market Information, has determined
that there is no significant negative impact upon employment conditions
in the state as a result of the rules.
Laurence M. Jones, Director, Workforce Development Division, has
determined that, for each of the first five years the proposed rule
amendments are in effect, the public benefit anticipated as a result
of enforcing the proposed rules will be to provide a unified and streamlined
process regarding the resolution of complaints, hearings, and appeals
related to Board-administered workforce services. In addition, due
process principles and other legal rights will be protected, program
outcomes will be achieved more effectively, and workforce services
will be further integrated.
The Agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the Agency's legal authority
to adopt.
PART IV. COORDINATION ACTIVITIES
Comments on the proposed rules may be submitted to TWC Policy Comments,
Policy and Development, 101 East 15th Street, Room 440T, Austin, Texas
78778; faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days
from the date this proposal is published in the
Texas Register
.
Subchapter D. PARENT RIGHTS AND RESPONSIBILITIES
The rules are proposed under Texas Labor Code, §301.0015
and §302.002(d), which provide the Commission the authority to
adopt, amend, or repeal such rules as it deems necessary for the effective
administration of Agency services and activities and the Texas Human
Resources Code, §44.002, regarding Administrative Rules.
The proposed rules will affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.
§809.74.Parent Appeal Rights.
(a)
Unless otherwise stated in this section, a parent
may request a hearing pursuant to
Chapter 823 of this title,
[
(b)
A parent may have an individual represent
him
or her
[
(c)
A parent of a child in protective services may
not appeal pursuant to
Chapter 823 of this title
[
(d)
If the parent's eligibility or child's enrollment
is denied, delayed, reduced, or terminated by a Choices caseworker,
the parent may [
(e)
If the parent's eligibility or child's enrollment
is denied, delayed, reduced, or terminated by an FSE&T caseworker,
the parent may [
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 27, 2007.
TRD-200702702
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in
the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor
Code. §301.0015 and §302.002(d), which provide the Commission
the authority to adopt, amend, or repeal such rules as it deems necessary
for the effective administration of Agency services and activities,
and the Texas Human Resources Code, §44.002, regarding Administrative
Rules.
The repeals affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§809.131.Board Review.
§809.132.Appeals to the Commission.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702703
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
Subchapter F. APPEALS
(Editor's note: The text of the following sections
proposed for repeal will not be published. The sections may be examined
in the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The Texas Workforce Commission (Commission) proposes
the repeal of the following subchapter of Chapter 811, relating to
Choices, in its entirety:
Subchapter F, Appeals, §§811.71 - 811.73
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed rule change is to establish detailed
and consistent procedures for complaints, hearings, and appeals related
to workforce services administered by Local Workforce Development
Boards (Boards). Texas Labor Code §302.065 requires that the
Commission integrate the administration of multiple federal block
grant programs and identify policy changes that support this integration.
The Commission expanded this integration to state-funded workforce
services, including examining the existing complaints and appeals
processes for workforce services administered by the Boards. An absence
of unified and integrated rules on complaints, hearings, and appeals
related to workforce services makes the existing rules difficult to
understand or interpret consistently and works as a barrier to integrating
workforce services.
To maintain uniformity and consistency across all Board-administered
workforce services and to protect due process rights of Texas Workforce
Center customers, in a separate, but concurrent, rulemaking, the Commission
is proposing the repeal of Chapter 823, General Hearings rules, and
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals rules. New Chapter 823 requires Boards to establish local
policies related to filing complaints, to provide opportunities for
informal resolutions, and to establish procedures for Board hearings
and appeals.
The Commission has reviewed sections of Chapter 811 relating to
complaints or grievances, local-level appeals, and state-level hearings.
The Commission proposes to repeal these sections and incorporate similar
processes related to complaints, hearings, and appeals in new Chapter
823.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER F. APPEALS
The Commission proposes the repeal of Subchapter F, as follows:
Under a separate, but concurrent, rulemaking proposal, the Commission
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals, which comprises the complaint, hearing, and appeal procedures
for all Board-administered workforce services, including the information
in the following sections.
§811.71. Board Review
Section 811.71 is repealed and the information is relocated in
new Chapter 823.
§811.72. Appeals to the Commission
Section 811.72 is repealed and the information is relocated in
new Chapter 823.
§811.73. Appeals to the Texas Department of Human Services
(TDHS)
Section 811.73 is repealed and the information is relocated in
new Chapter 823.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that for
each year of the first five years the rules will be in effect, the
following statements will apply:
There are no additional estimated costs to the state and local
governments expected as a result of enforcing or administering the
rules.
There are no estimated reductions in costs to the state and to
local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state
or to local governments as a result of enforcing or administering
the rules.
There are no foreseeable implications relating to costs or revenue
of the state or local governments as a result of enforcing or administering
the rules.
There are no anticipated economic costs to persons required to
comply with the rules.
There is no anticipated adverse economic impact on small or microbusinesses
as a result of enforcing or administering the rules.
Mark Hughes, Director of Labor Market Information, has determined
that there is no significant negative impact upon employment conditions
in the state as a result of the rules.
Laurence M. Jones, Director, Workforce Development Division, has
determined that for each of the first five years the rules are in
effect, the public benefit anticipated as a result of enforcing the
proposed rules will be to provide a unified and streamlined process
regarding the resolution of complaints, hearings, and appeals related
to Board-administered services. In addition, due process principles
and other legal rights will be protected, program outcomes will be
achieved more effectively, and workforce services will be further
integrated.
The Agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the Agency's legal authority
to adopt.
PART IV. COORDINATION ACTIVITIES
Comments on the proposed rules may be submitted to TWC Policy Comments,
Policy and Development, 101 East 15th Street, Room 440T, Austin, Texas
78778; faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days
from the date this proposal is published in the
Texas Register
.
The repeals are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities, and Texas Human Resources Code, Chapters 31 and 34.
The proposed repeals affect Texas Labor Code, Title 4, and Texas
Human Resources Code, Chapters 31 and 34.
§811.71.Board Review.
§811.72.Appeals to the Agency.
§811.73.Appeals to the Texas Department of Human Services (TDHS).
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 27, 2007.
TRD-200702705
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
Subchapter F. COMPLAINTS AND APPEALS
(Editor's note: The text of the following sections
proposed for repeal will not be published. The sections may be examined
in the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The Texas Workforce Commission (Commission) proposes
the repeal of the following sections of Chapter 813 relating to Food
Stamp Employment and Training:
Subchapter F, Complaints and Appeals, §813.51 and §813.52
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed rule change is to establish detailed
and consistent procedures for complaints, hearings, and appeals related
to workforce services administered by Local Workforce Development
Boards (Boards). Texas Labor Code §302.065 requires that the
Commission integrate the administration of multiple federal block
grant programs and identify policy changes that support this integration.
The Commission expanded this integration to state-funded workforce
services, including examining the existing complaints and appeals
processes for workforce services administered by the Boards. An absence
of unified and integrated rules on complaints, hearings, and appeals
related to workforce services makes the existing rules difficult to
understand or interpret consistently and works as a barrier to integrating
workforce services.
To maintain uniformity and consistency across all Board-administered
workforce services and to protect due process rights of Texas Workforce
Center customers, in a separate, but concurrent, rulemaking proposal,
the Commission is proposing the repeal of Chapter 823, General Hearings
rules, and is proposing new Chapter 823, Integrated Complaints, Hearings,
and Appeals rules. New Chapter 823 requires Boards to establish local
policies for filing complaints, to provide opportunities for informal
resolutions, and to establish procedures for Board hearings and appeals.
The Commission has reviewed sections of Chapter 813 relating to
complaints or grievances, local-level appeals, and state-level hearings.
The Commission proposes to repeal these sections and incorporate similar
processes related to complaints, hearings, and appeals in new Chapter
823.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER F. COMPLAINTS AND APPEALS
The Commission proposes amendments to Subchapter F, as follows:
Under a separate, but concurrent, rulemaking proposal, the Commission
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals, which comprises the complaint, hearing, and appeal procedures
for all Board-administered workforce services, including the information
in the following sections.
§813.51. Appeals of Decisions Made on Food Stamp Applications
and Benefits
Section 813.51 is repealed and the information is relocated in
new Chapter 823.
§813.52. Appeals of E&T Activities and Support Services
Decisions
Section 813.52 is repealed and the information is relocated in
new Chapter 823.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that for
each year of the first five years the rules will be in effect, the
following statements will apply:
There are no additional estimated costs to the state and local
governments expected as a result of enforcing or administering the
rules.
There are no estimated reductions in costs to the state and to
local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state
or to local governments as a result of enforcing or administering
the rules.
There are no foreseeable implications relating to costs or revenue
of the state or local governments as a result of enforcing or administering
the rules.
There are no anticipated economic costs to persons required to
comply with the rules.
There is no anticipated adverse economic impact on small or microbusinesses
as a result of enforcing or administering the rules.
Mark Hughes, Director of Labor Market Information, has determined
that there is no significant negative impact upon employment conditions
in the state as a result of the rules.
Laurence M. Jones, Director, Workforce Development Division, has
determined that for each year of the first five years the rules are
in effect, the public benefit anticipated as a result of enforcing
the proposed rules will be to provide a unified and streamlined process
regarding the resolution of complaints, hearings, and appeals related
to Board-administered workforce services. In addition, due process
principles and other legal rights will be protected, program outcomes
will be achieved more effectively, and workforce services will be
further integrated.
The Agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the Agency's legal authority
to adopt.
PART IV. COORDINATION ACTIVITIES
Comments on the proposed rules may be submitted to TWC Policy Comments,
Workforce and UI Policy, 101 East 15th Street, Room 440T, Austin,
Texas 78778; faxed to 512-475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days
from the date this proposal is published in the
Texas Register
.
The repeals are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities, and Texas Human Resources Code §44.002, regarding
Administrative Rules.
The proposed repeals affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as Texas Government Code, Chapter 2308.
§813.51.Appeals of Decisions Made on Food Stamp Applications and Benefits.
§813.52.Appeals of E&T Activities and Support Services Decisions.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 27, 2007.
TRD-200702706
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
The Texas Workforce Commission (Commission) proposes the repeal
of Chapter 823, relating to General Hearings, §§823.1 -
823.3, 823.11 - 823.15, 823.31 - 823.34, and 823.41 - 823.44 in its
entirety.
The Commission proposes new Chapter 823, relating to Integrated
Complaints, Hearings, and Appeals, as follows:
Subchapter A. General Provisions, §§823.1 - 823.4
Subchapter B. Board Complaint and Appeal Procedures, §§823.10
- 823.14
Subchapter C. Agency Complaint and Appeal Procedures, §§823.20
- 823.27
Subchapter D. Agency-Level Decisions, Reopenings, and Rehearings, §§823.30
- 823.33
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed repeal of Chapter 823 and proposed
new Chapter 823 is to:
--establish uniform procedures and time frames;
--clarify additional Local Workforce Development Board (Board)
responsibilities relating to appeals of Board decisions;
--simplify rule language and definitions;
--remove obsolete provisions; and
--promote operational efficiencies.
Texas Government Code §2001.039 requires that each state agency
review and consider for readoption each rule adopted by that agency
every four years. The Commission's General Hearings Rules, Chapter
823, were reviewed in 2006 with the goals of:
--promoting integrated workforce services;
--simplifying rule language;
--streamlining Board appeals processes and responsibilities;
--updating terminology and definitions; and
--removing obsolete provisions.
Texas Labor Code §302.065 directs the Commission to integrate
the administration of four federal block grant programs with the goal
of streamlining the delivery of services provided in the local career
development one-stops. These programs include child care, Temporary
Assistance for Needy Families (TANF), Food Stamp Employment and Training
(FSE&T), and Workforce Investment Act (WIA). The Commission expanded
this integration to include all Board-administered workforce services.
Furthermore, the law directs the Commission to conduct a review of
its programs, rules, policies, procedures, and organizational structure
to identify specific barriers to the integration. The Commission has
identified policy changes that support this integration by examining
the existing complaints and appeals processes for workforce services
administered by the Boards. The absence of unified and integrated
rules on complaints, hearings, and appeals related to workforce services
makes the existing rules difficult to understand or to interpret consistently
and works as a barrier to integrating workforce services.
Moreover, the existing rules do not fully reinforce the principles
of local flexibility and, instead, shift appeals processes from the
local to the state level. The Commission has identified policy changes
that enhance local flexibility by vesting local Boards with responsibility
to provide opportunity for informal resolution, as well as conducting
hearings, as necessary. These modifications will primarily affect
childcare complaints, as most Boards currently address most other
complaints under WIA.
The Commission has reviewed the following rules governing complaints,
hearings, and appeals for workforce services administered by the Boards:
--Child Care Services Rules: 40 TAC Chapter 809, Subchapters D
and G
--Choices Rules: 40 TAC Chapter 811, Subchapter F
--Food Stamp Employment and Training Rules: 40 TAC Chapter 813,
Subchapter F
--Workforce Investment Act Rules: 40 TAC Chapter 841, Subchapters
C, D, and E
While the chapters are similar in scope, each one established different
procedures for individuals who wish to file a complaint, with inconsistent
instructions regarding filing complaints, opportunities for informal
reviews, and the right to file an appeal. The lack of continuity among
the chapters complicates co-enrollment and service integration. In
addition, the timelines for these procedures are inconsistent across
the chapters.
Additionally, the Project Reintegration of Offenders (Project RIO)
rules, 40 TAC Chapter 847, do not address Board review or notice of
the right to file a complaint. Therefore, the new Chapter 823 rules
include processes for Board hearings and notices of the right to file
a complaint under the Project RIO rules.
New Chapter 823 follows the complaints and appeals process established
in WIA regulations, 20 C.F.R. §667.600 and §667.640, which
provide federally mandated procedures and time frames for complaints
and appeals. The WIA procedures in Chapter 841 of this title are the
only rules that have federal requirements; other Board-administered
workforce services are not federally guided, but instead are governed
by Commission rules.
To maintain uniformity and consistency across all Board-administered
workforce services and to protect due process rights, the new Chapter
823 rules require Boards to establish local policy to ensure that
Texas Workforce Center customers are notified, in writing, of any
adverse actions and are provided with information on appeal rights
and the right to file a complaint regarding their workforce services.
Boards that do not advise Texas Workforce Centers of the requirement
to inform customers of their right to file a complaint or to appeal
the written notice of an adverse action risk violating due process
principles, which require notice of these rights.
This chapter establishes a dispute resolution process that can
be started in one of two ways. The first allows a person to file an
appeal following a written determination issued by a Board or its
designee. If a written determination has been issued, an appeal must
be filed with the Board within 14 calendar days. The other method
of initiating the process is for a person to complain of alleged violations
of any law, rule, or regulation relating to any federal or state-funded
workforce service. If no written determination is issued regarding
an adverse action or perceived violation, a person may file a complaint
within 180 days of the adverse action or violation.
Under the processes set forth in this chapter, following the receipt
of an appeal or a complaint at the Board level, the Board will provide
an opportunity for informal resolution. In the informal resolution
process, Boards will have the flexibility to utilize such diverse
procedures as informal meetings with case managers, reviews of case
files, conference calls, interviews, or written explanations, as appropriate
for the situation. While this may represent additional responsibilities
for some Boards, it is the intent and expectation of the Commission
that the majority of appeals and complaints will be resolved informally
in this manner, without the necessity of holding a hearing.
However, if no successful informal resolution can be reached, the
Board shall hold a hearing and issue a written decision that includes
information about filing an appeal with the Agency. If a Board's written
decision is appealed to the Agency, an Agency hearing officer will
conduct a hearing and issue a decision on behalf of the Agency. Although
requiring Boards to issue written decisions may result in supplementary
efforts by Boards initially, the Commission expects greater customer
satisfaction at the local level and potentially system-wide savings
as formal proceedings at the state level are minimized.
There also may be circumstances in which an appeal or complaint
may be filed directly with the Agency. In such a case, the Agency
has the discretion to refer the appeal or complaint back to the Board,
if appropriate. If an appeal is based on a determination issued by
the Agency itself, however, or if a complaint is about the statewide
provision of services rather than a local service issue, the Agency
will provide an opportunity for informal resolution and a hearing,
following the same kind of procedure as the Boards.
To assist Boards with the implementation of these rules, the Commission
intends to provide training for Board personnel and support for development
of Board processes. This technical assistance may include training
on informal resolution procedures, hearing officer training, sample
forms for Boards to use for complaints or determinations, and other
assistance as needed to enable Boards to develop their own procedures.
The Commission retains the requirement that the Agency hearing
officer shall be the final decision maker for state-level appeals.
Federal WIA regulations require the Agency to complete its decision
within 60 days of receipt of an appeal or complaint, leaving little
time for an appeal process within the Agency. Therefore, pursuant
to 20 C.F.R. §667.610, if a party wishes to appeal a decision
of an Agency hearing officer under the federal WIA regulations, the
appeal must be filed with the U.S. Department of Labor (DOL).
The Commission maintains separate procedures to resolve complaints
concerning the basic labor exchange, as those procedures and timelines
are dictated by 20 C.F.R. Part 658, Subpart E, §§400 - 418
and federal Employment Service law. Basic labor exchange complaints
include those related to:
--violations of the terms and conditions of a job order;
--noncriminal complaints alleging acts or omissions by Texas Workforce
Center staff; and
--complaints affecting migrant and seasonal farmworkers (MSFWs).
The Commission also maintains separate procedures for hearings
and appeals under Chapter 807, relating to Career Schools and Colleges,
and under Chapter 800, the General Administration rules relating to
Board Sanctions. Hearings and appeals for Agency-administered programs
are determined separately and distinctly from Board-administered workforce
services. The repeal of Chapter 823 affects the hearings and appeals
processes for each of these chapters; therefore, in separate, but
concurrent, rulemaking proposals, certain sections of repealed Chapter
823 have been modified and incorporated into Chapter 800 and Chapter
807.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
The Commission proposes new Subchapter A, General Provisions, as
follows:
Subchapter A contains the general provisions of the Integrated
Complaints, Hearings, and Appeals rules, which include the short title
and purpose; definitions of terms used throughout Chapter 823; and
provisions related to appeal representation.
Subchapter A also adds a detailed process related to deadlines
after a determination is mailed to each party to a complaint or appeal.
This provision applies to Boards, their designees, and the Agency.
§823.1. Short Title and Purpose
Section 823.1(a) states that Chapter 823 provides for an appeals
process to the extent authorized by federal and state law, by rules
administered by the Commission. The purpose remains the same as the
purpose stated in repealed Chapter 823.
Section 823.1(b) specifically lists the types of complaints or
determinations that are covered by Chapter 823. These pertain only
to federal- or state-funded workforce services administered by the
Agency or the Boards. These services include child care; TANF Choices;
FSE&T Project RIO; WIA Adult, Dislocated Worker, and Youth; and
Eligible Training Providers receiving WIA funds or other funds for
training services.
Section 823.1(c)(1) - (7) lists determinations or complaints that
are not covered under new Chapter 823, including:
(1) Across-the-board reductions in services, benefits, or assistance
to a class of recipients.
(2) Matters governed by hearings procedures otherwise provided
for in this title. This includes Board sanction hearings under Chapter
800, Subchapter E; hearings resulting from Agency monitoring activities
under Chapter 800, Subchapter H; hearings regarding alleged breach
of contract under Chapter 800, Subchapter K; career school cease and
desist order hearings under Chapter 807, Subchapter S; career school
licensing hearings under proposed Chapter 807, Subchapter T; Unemployment
Insurance (UI) hearings under Chapter 815; child labor hearings under
Chapters 815 and 817; Fair Housing Act hearings under Chapter 819;
wage claim hearings under Chapters 815 and 821; and hearings regarding
Trade Act activities or services under Chapter 815 and Chapter 849,
Subchapter E.
(3) Alleged violations of nondiscrimination and equal opportunity
requirements. Complaints regarding alleged violations of the nondiscrimination
and equal opportunity requirements of WIA are handled by the Equal
Opportunity Compliance Sectionof the Commission under Chapter 841,
Subchapter F.
(4) Denial of benefits as it relates to mandatory work requirements
for individuals receiving Choices and FSE&T services administered
through the Texas Health and Human Services Commission (HHSC).
(5) Matters governing job service-related complaints as referenced
in 20 C.F.R. Part 658, Subpart E, §§400 - 418 and federal
Employment Service law.
(6) Services provided by the Agency pursuant to Texas Labor Code §301.023,
Complaints Against the Commission.
(7) Alleged criminal violations of any services referenced in §823.1(b).
§823.2. Definitions
Section 823.2 sets forth the definitions for terms used throughout
Chapter 823. The section incorporates definitions from repealed Chapter
823, and adds new terms and definitions.
Section 823.2(1) defines "Adverse action" as any denial or reduction
of benefits or services to a party. This definition applies to individuals
who are adversely affected by the type or level of services received
from a Board or statewide One-Stop Service Delivery Network, including
those individuals displaced from current employment by Texas Workforce
Center customers.
Section 823.2(2) defines "Agency decision" as a written finding
issued by an Agency hearing officer following a hearing before that
hearing officer. The intent is to distinguish in rule, when necessary,
the difference between a Board decision and an Agency decision.
Section 823.2(3) defines "Appeal" as a written request for a review
filed with the Board or Agency by a person in response to a determination
or decision. The intent of this definition is to be consistent with
other Commission rules that govern hearings and appeals.
Section 823.2(4) defines "Board decision" as a written finding
issued by a Board following a hearing by a Board hearing officer.
The intent is to distinguish in rule, when necessary, the difference
between a Board decision and an Agency decision.
Section 823.2(5) defines "Complaint" as a written statement alleging
a violation of any law, regulation, or rule relating to any federal-
or state-funded workforce service. This definition is consistent with
other definitions of complaint in this title. Boards also may receive
objections regarding direct provision of workforce-related services
that do not allege a violation of law or regulations, but rather concern
dissatisfaction with the behavior of Board or contractor employees,
or other matters not concerning the services themselves. These objections
are handled through informal resolutions at the Board and contractor
levels; they are not covered under this chapter and are not appealable
to the Agency.
Section 823.2(6) defines "Determination" as a written statement
issued by a Board, its designee, or the Agency relating to an adverse
action, or to a provider or a contractor relating to denial or termination
of eligibility, under programs administered by the Agency or Boards
listed in §823.1(b).
Section 823.2(7) defines "Hearing officer" as an impartial individual
designated by either the Board or the Agency to conduct hearings and
issue administrative decisions. This new definition provides for the
designation of hearing officers by both the Board and the Agency and
is similar to the definition in repealed Chapter 823. A hearing officer
need not be an attorney.
Section 823.2(8) defines "Informal resolution" as any procedure
that results in an agreed final settlement between all parties to
a complaint or an appeal. The Commission adds rules in new Subchapters
B and C requiring the Boards and the Agency to provide an opportunity
for informal resolution to resolve disputes resulting from either
a complaint or an appeal to a determination.
Section 823.2(9) defines "Party" as a person who files a complaint
or who appeals a determination, or the entity against which the complaint
is filed or that issued the determination. This definition is found
in repealed Chapter 823 but has been modified to reflect other changes
in new Chapter 823.
§823.3. Agency and Board Timeliness
Section 823.3 provides an efficient context, based on established
principles of due process, for adjudicating late appeals and holding
some late appeals timely. The principles are drawn from Chapter 815
of this title, related to UI, case law, and experience.
Section 823.3 also adds a detailed process related to deadlines
after a determination is mailed to a party. This provision applies
to Boards, their designees, and the Agency.
Section 823.3(a) states that a properly addressed determination
or decision is final for all purposes unless the party to whom it
is mailed files an appeal no later than the fourteenth calendar day
after the mailing date.
Section 823.3(b) states that each party to a complaint or an appeal
must promptly notify, in writing, the Board, Board's designee, or
the Agency with which the complaint or appeal was filed of any change
of mailing address. Determinations and decisions shall be mailed to
this address.
Section 823.3(b)(1) states that a copy of the determination or
decision must be mailed to a properly designated party representative
in order for it to become final.
Section 823.3(b)(2) states that the Board or Agency is responsible
for making an address change only if the Board or Agency is specifically
directed by the party to mail subsequent correspondence to the new
address.
Section 823.3(b)(3) states that if the Board, Board's designee,
or Agency addresses a document incorrectly, but the party receives
the document, the time frame for filing an appeal shall begin as of
the actual date of receipt by the party, whether or not the party
receives the document within the appeal time frame set forth in §823.3(a).
However, this requirement does not apply if the party fails to provide
a current address or provides an incorrect address.
Section 823.3(c) states that a determination or decision mailed
to a party shall be presumed to have been delivered if the document
was mailed as specified in §823.3(b).
Section 823.3(c)(1) states in subparagraphs (A) and (B) that the
determination or decision shall not be presumed to have been delivered:
(A) if there is tangible evidence of nondelivery, such as being
returned to sender by the U.S. Postal Service; or
(B) if credible and persuasive evidence is submitted to establish
nondelivery or delayed delivery to the proper address.
Section 823.3(c)(2) states that if a party provides the Board or
Agency with an incorrect mailing address, a mailing to that address
must be considered a proper mailing, even if there is proof that the
party never received the document.
Section 823.3(d) states that a complaint or an appeal must be in
writing. Complaints or appeals may be filed electronically only if
filed in a form approved by the Agency in writing.
Section 823.3(d)(1) - (7) specifies that the filing date for a
complaint or an appeal is:
(1) the postmarked date or the postal meter date (where there is
only one or the other);
(2) the postmarked date, if there is both a postmarked date and
a postal meter date;
(3) the date the document was delivered to a common carrier, which
is equivalent to the postmarked date;
(4) three business days before receipt by the Board or Agency,
if the document was received in an envelope bearing no legible postmark,
postal meter date, or date of delivery by a common carrier;
(5) the date of the document itself, if the document date is fewer
than three days earlier than the date of receipt and the document
was received in an envelope bearing no legible postmark, postal meter
date, or date of delivery by a common carrier;
(6) the date of the document itself, if the mailing envelope containing
the complaint or appeal is lost after delivery to the Board or Agency.
If the document is undated, the filing date must be deemed to be three
business days before receipt by the Board or Agency; or
(7) the date of receipt by the Board or Agency, if the document
was filed by fax.
Section 823.3(e) states that credible and persuasive testimony
under oath, subject to cross-examination, may establish a filing date
that is earlier than the dates established under §823.3(d). A
party may be allowed to establish a filing date earlier than a postal
meter date or the date of the document itself only upon a showing
of extremely credible and persuasive evidence. Likewise, when a party
alleges that a complaint or appeal has been filed that the Board or
Agency has never received, the party must present extremely credible
and persuasive evidence to support the allegation.
Section 823.3(f)(1) and (2) states that a decision or determination
shall not be deemed final if a party shows that a representative of
the Board, Board's designee, or Agency has given misleading information
on appeal rights to the party. The party shall specifically establish:
(1) how the party was misled; or
(2) what misleading information the party was given, and, if possible,
by whom the party was misled.
Section 823.3(g) states that there is no good cause exception to
the timeliness rules.
§823.4. Representation
Section 823.4 states that each party may authorize a hearing representative
to assist in presenting a complaint or an appeal on behalf of the
party under this chapter. The Agency or Board may require authorization
to be in writing. On behalf of the party, the representative may exercise
any of a party's rights under this chapter. Information from repealed
Chapter 823 relating to Information on Right of Appeal is incorporated
throughout new Chapter 823, where appropriate.
SUBCHAPTER B. BOARD COMPLAINT AND APPEAL PROCEDURES
The Commission proposes new Subchapter B, Board Complaint and Appeal
Procedures, as follows:
Subchapter B contains Board-level complaint and appeal procedures
related to all workforce services administered by the Boards.
The WIA regulations require that procedures be developed related
to processes dealing with complaints, appeals, and hearings at both
the local level and the state level. In addition, WIA also provides
that eligible training providers denied WIA funding for training services
be given the right to appeal the denial to the Board or the Agency.
These procedures are currently set forth in Chapter 841 of this title.
Under a separate, but concurrent, rulemaking proposal, the Commission
proposes to repeal the Chapter 841 rules related to local and state
appeals; local-level complaint procedures; and state-level hearing
procedures. The repealed Chapter 841 sections have been incorporated
in new Chapter 823. This new provision related to processes dealing
with complaints, appeals, and hearings applies to the workforce services
administered by the Agency or Board as listed in §823.1(b).
Subchapter B includes a new provision related to informal resolution.
Once a complaint has been filed, an opportunity for informal resolution
will be offered by the Board or its designee and the Agency. This
provision is currently located in Chapter 841 of this title relating
to complaints filed with the Board; however, there is no informal
resolution provision offered by the Agency. New Chapter 823 allows
the Boards and the Agency to resolve customers' issues in an informal
manner in advance of a Board or Agency hearing. Under a separate,
but concurrent, rulemaking proposal, the Commission proposes to repeal
the Chapter 841 rules related to local-level informal resolution.
New Chapter 823 modifies and incorporates these repealed Chapter 841
rules. The informal resolution provision applies to workforce services
administered by the Boards or the Agency as listed in §823.1(b).
Subchapter B also adds a new provision that incorporates similar
information related to determinations found throughout repealed Chapter
823. A determination is provided to any person affected by a Board
or Board contractor's adverse action. Boards will be required to establish
policies to ensure Texas Workforce Center customers receive a written
determination notifying them of any adverse actions and to provide
these customers with information on complaints and appeal rights.
The intent of the Commission is to ensure the protection of the due
process rights of Texas Workforce Center customers.
Subchapter B includes a new provision related to Board hearings.
Board hearings or "Board reviews" are addressed in Chapters 809, 811,
and 841. The sections in each of these chapters related to Board reviews
are proposed for repeal under separate, but concurrent, rulemaking
proposals. New Chapter 823 contains a single process for Board hearings
and provides specific and consistent guidance for Boards to conduct
hearings when a customer or provider appeals a determination.
§823.10. Board-Level Complaints
Section 823.10 contains specific responsibilities regarding filing
complaints with a Board.
Section 823.10(a)(1) - (3) identifies persons who may file a complaint,
including:
(1) Texas Workforce Center customers. These are individuals who
have applied for or are eligible to receive federal- and state-funded
workforce services administered by the Agency or Boards listed in §823.1(b).
(2) other interested persons affected by the One-Stop Service Delivery
Network, including subrecipients. These persons may include child
care or other service providers that have received a determination
issued by a Board.
(3) previously employed individuals who believe they were displaced
by a Texas Workforce Center customer participating in work-based services
such as subsidized employment, work experience, or workfare. This
subparagraph complies with the nondisplacement rules required by several
federal agencies.
The U.S. Department of Health and Human Services (DHHS) regulations
at 45 C.F.R. §261.70 require that safeguards be in place to ensure
that TANF individuals do not displace other workers. In addition,
states must establish and maintain procedures to resolve complaints
of alleged violations of the displacement rule.
DOL regulations at 20 C.F.R. §667.270(a) require that safeguards
be in place to ensure that participants in WIA employment and training
activities do not displace other employees. Both regular employees
and program participants may file a complaint.
The U.S. Department of Agriculture (USDA), Food and Nutrition Service
(FNS) requires states to have a nondisplacement rule. The statute
at 7 C.F.R. §273.7(m)(6)(i)(H) states that agencies must not
place an FSE&T workfare participant in a work position that has
the effect of replacing or preventing the employment of an individual
not participating in the workfare program. In addition, 7 C.F.R. §273.7(e)(1)(iv)(A)
and (B) states that agencies must not place FSE&T individuals
participating in workfare or work experience in an employment and
training activity that has the effect of replacing the employment
of an individual not participating in the employment and training
experience program. The regulations go on to state that employers
must provide the same benefits and working conditions that are provided
at the job site to employees performing comparable work for comparable
hours. Although FNS does not require states to establish procedures
to resolve complaints alleging violations of the displacement rule,
the Commission includes the FNS displacement rule as part of service
integration for workforce services.
Section 823.10(b) states that a complaint is required to be in
writing and to be filed within 180 days of the alleged violation.
This requirement, located in §841.63, Time Limitations at Local
Level, which is concurrently proposed for repeal, is modified and
incorporated in new Chapter 823.
Section 823.10(c) requires the complaint to contain the party's
name, current mailing address, and a brief statement of the alleged
violation identifying the facts on which the complaint is based. Portions
of this requirement are found in §841.62, Grievance Filing Procedures
at the Local Level, which is concurrently proposed for repeal. The
requirement is modified and incorporated in new Chapter 823.
Section 823.10(d)(1) - (4) requires Boards to ensure that information
about complaint procedures is provided to individuals, eligible training
providers, and subrecipients. Information must be presented in a manner
that is easily understood by the affected individuals, including youth,
individuals with disabilities, and individuals with limited English
proficiency, and must be:
(1) posted in a conspicuous public location at each Texas Workforce
Center;
(2) provided in writing to any customer;
(3) made available in writing to any individual upon request; and
(4) placed in each Texas Workforce Center customer's file.
This provision follows federal WIA requirements set forth in §841.64,
LWDB Responsibilities, which is concurrently proposed for repeal,
and is modified and incorporated in new Chapter 823.
§823.11. Determinations
Section 823.11 relates to Boards and their designees issuing determinations
regarding actions that affect the type and level of workforce services
provided. This section includes the information required when issuing
a determination to training providers found by the Boards to be ineligible
to receive WIA funding for training services. Additionally, this section
retains provisions from §841.48, Local Appeals, concurrently
proposed for repeal, which requires that a written decision on an
appeal be provided to an eligible training provider whose eligibility
has been terminated.
Section 823.11(a) requires that a Board or its designee must promptly
issue a written determination regarding any action adversely affecting
the type and level of services to any person directly affected. The
intent of the Commission is to ensure the protection of due process
and other legal rights of Texas Workforce Center customers and other
persons.
Section 823.11(b)(1) - (6) requires that the determination include
the following information:
(1) A brief statement of the adverse action;
(2) The mailing date of the determination;
(3) An explanation of the individual's right to an appeal;
(4) The procedures for filing an appeal to the Board, including
applicable time frames as required in §823.3;
(5) The right to have a hearing representative, including legal
counsel; and
(6) The address or fax number to which the appeal must be sent.
This subsection incorporates similar provisions related to determinations
found throughout repealed Chapter 823.
Section 823.11(c)(1) - (3) requires Boards to allow providers of
training services the opportunity to appeal a determination related
to the:
(1) denial of eligibility as a training provider under WIA §122(b), §122(c),
or §122(e);
(2) termination of eligibility as a training provider or other
action under WIA §122(f); or
(3) denial of eligibility as a training provider of on-the-job
or customized training by the operator of a Texas Workforce Center
under WIA §122(h).
This section retains certain provisions from §841.48, Local
Appeals, which is concurrently proposed for repeal. In addition, this
provision references the WIA requirements at 20 C.F.R. §667.640(b)
relating to "denial or termination of eligibility as a training provider."
States are required to provide an opportunity to appeal a denial or
termination of eligibility by Boards.
Section 823.11(d) states that a person who receives a determination
from a Board or a Board's designee may file an appeal with the Board
requesting a review of the determination. The appeal must be submitted
in writing and filed within 14 calendar days of the mailing date of
the determination. The appeal must include the party's proper mailing
address. This provision is located in the Commission's Child Care
Services, Choices, and WIA rules in §809.131 and §809.132; §§811.71
- 811.73; and §§841.48, 841.49, 841.61 - 841.69, 841.91
- 841.93, 841.95, and 841.96, respectively. These sections are proposed
for repeal, and one single uniform procedure for appealing a determination
is included in new Chapter 823.
§823.12. Board Informal Resolution Procedure
Section 823.12 identifies the specific responsibilities of a Board
to conduct informal resolution. This new provision also includes recommendations
on how to conduct informal resolution.
Section 823.12(a) states that a Board shall provide the opportunity
for informal resolution of a complaint or appeal. This provision allows
Boards or their designees the opportunity to resolve customers' issues
in an informal manner in lieu of a Board hearing. This subsection
follows federal WIA requirements set forth in §841.65, Local
Level Informal Conference Procedure, which is concurrently proposed
for repeal. This information is modified and incorporated in new Chapter
823.
Section 823.12(b)(1) - (5) provides recommendations on how informal
resolution may be conducted, including but not limited to:
(1) informal meetings with case managers or their supervisors;
(2) second reviews of the case file;
(3) telephone calls or conference calls to the affected parties;
(4) in-person interviews with all affected parties; or
(5) written explanations or summaries of the laws or regulations
involved in the complaint.
This provision allows Boards or their designees to determine the
most expeditious and practical method of resolving complaints or appeals
in an informal manner, thereby possibly precluding the necessity of
a Board hearing.
§823.13. Board Hearings
Section 823.13 provides the requirements for Board hearings for
resolving complaints or appeals filed from a determination. The provisions
in this section are retained, with modifications, from certain rules
in Chapters 809, 811, 813, and 841 of this title, which are concurrently
proposed for repeal.
Section 823.13(a) states that if the parties reach a final agreement
through informal resolution, no hearing shall be held. It is not necessary
for a complaint or appeal to proceed to a Board hearing if all parties
reach an agreement through the informal resolution procedure.
Section 823.13(b) requires Boards to provide an opportunity for
a hearing to resolve an appeal or complaint, if not succesfully resolved
through the informal resolution procedure. This provision is found
in §841.66, Local Level Hearing Procedure, which is proposed
for repeal. The language is modified and included in new Chapter 823.
Section 823.13(c) requires Boards to complete either an agreement
resulting from informal resolution or a hearing and Board decision
within 60 calendar days of the original filing of an appeal or complaint.
This follows federal WIA requirements, set forth in §841.66,
Local Level Hearing Procedure, which is concurrently proposed for
repeal. The language is modified and incorporated in new Chapter 823.
Section 823.13(d) requires Boards to provide a process that allows
an individual alleging a labor standards violation to submit a complaint
through a binding arbitration procedure. Examples of labor standards
violations might include infringement on the right to collective bargaining,
pay disputes, employment discrimination, or disputes as to employee
benefits. Most collective bargaining agreements have specific provisions
covering such violations and specific grievance procedures to address
them. These procedures frequently include binding arbitration under
the Federal Arbitration Act (Title 9, U.S.C., §§1 - 16)
in which both parties agree to submit the dispute to a neutral arbitrator.
The arbitrator's decision is final and binding upon both parties.
This section follows federal WIA requirements to ensure that arbitration
rights under collective bargaining agreements are enforced. In such
a case, the Board may be required to follow the provisions of the
applicable collective bargaining agreement with respect to its arbitration
procedure.
Section 823.13(e) states that within 60 calendar days of the filing
of the appeal or complaint, the Board shall send the parties a decision
setting forth the results of the Board hearing. This decision shall
be issued by a Board hearing officer, shall include findings of fact
and conclusions of law, and shall provide information about appeal
rights. This requirement follows federal WIA requirements and is located
in §841.66, Local Level Hearing Procedure, which is concurrently
proposed for repeal. This language is modified and incorporated in
new Chapter 823.
Section 823.13(f) provides that a party may file an appeal with
the Agency if a Board decision is not mailed within the 60-calendar-day
time frame described in subsection (e) of this section or if any party
disagrees with a timely Board decision. This follows federal WIA requirements
and is contained in the proposed repeal of §841.66, Local Level
Hearing Procedure. The language is modified and incorporated in new
Chapter 823.
Section 823.13(g) notifies parties that an appeal to the Agency
must be filed in writing with TWC Appeals, Texas Workforce Commission,
101 East 15th St., Room 410, Austin, Texas 78778-0001, within 14 calendar
days after the mailing date of the Board's decision. If the Board
does not issue a decision within 60 calendar days of the date of the
filing of the original appeal or complaint, an appeal to the Agency
must be filed no later than 90 calendar days after the filing date
of the original appeal or complaint. This requirement is found in §841.69,
Appeal, which is concurrently proposed for repeal. The language is
modified and incorporated in new Chapter 823.
§823.14. Board Policies for Resolving Complaints and Appeals
of Determinations
Section 823.14 relates to Boards' policies for complaints and appeals
of determinations, informal resolution, and hearings at the Board
level. This requirement located in Chapter 841, Subchapter D, which
is concurrently proposed for repeal, is modified and incorporated
in new Chapter 823.
Section 823.14(a) requires Boards to develop written policies to
handle complaints and appeals, provide the opportunity for informal
resolution, and conduct hearings in accordance with this subchapter
for individuals, eligible training providers, and other persons affected
by the One-Stop Service Delivery Network, including subrecipients.
Section 823.14(b) requires a Board and its subrecipients to maintain
written copies of these policies and make them available to the Agency,
Texas Workforce Center customers, and other interested persons upon
request. This provision is modified and retained from Chapter 841,
Subchapter D, which is concurrently proposed for repeal
Section 823.14(c)(1) - (8) lists the minimum requirements for Board
policies relating to complaints, informal resolution, and hearings.
Required Board policies are found throughout other referenced rules,
which are concurrently proposed for repeal. New §823.14(c) provides
an itemized list of required policies in one subsection. Boards must
develop and approve policies to:
(1) ensure that determinations are provided as specified in §823.11;
(2) ensure that information about complaint procedures is available
as described in §823.10(d);
(3) notify persons that complaints must be submitted in writing
and set forth the facts on which the complaint is based, and notify
individuals of the time limit in which to file a complaint;
(4) maintain a complaint log and all complaint-related materials
in a secure file for a period of three years;
(5) designate an individual to be responsible for investigating,
documenting, monitoring, and following up on complaints;
(6) inform persons of the:
(A) right to file a complaint;
(B) right to appeal a determination;
(C) opportunity for informal resolution and a Board hearing;
(D) Boards' time frames for either reaching informal resolution
or issuing a decision; and
(E) right to file an appeal to the Agency, including information
on where to file the appeal;
(7) designate hearing officers to conduct Board hearings, document
actions taken, and render decisions; and
(8) ensure that complaints remanded from the Agency to the Board
for resolution are handled in a timely fashion and follow established
Board policies and time frames.
Section 823.14(d) notifies Boards that complaints filed directly
with the Agency may be remanded to the appropriate Board to be processed
in accordance with the Board's policies for resolving complaints.
The new subsection, which complies with WIA regulations allowing complaints
to be remanded first to the appropriate Board for resolution, provides
that a customer can file a complaint directly with the Agency and
that the Agency then may choose to remand a complaint to the Board
for resolution.
SUBCHAPTER C. AGENCY COMPLAINT AND APPEAL PROCEDURES
The Commission proposes new Subchapter C, Agency Complaint and
Appeal Procedures, as follows:
Subchapter C contains the Agency's complaint and appeal procedures.
Similar to repealed Subchapters B and C, new Subchapter C contains
rule provisions related to the setting of hearings, postponement and
continuance of hearings, evidence presented for hearings, hearing
officer disqualification, recusal and reassignment, hearing procedures,
and withdrawal of complaints and appeals. New Subchapter C contains
many of the provisions related to general hearings found throughout
repealed Chapter 823.
Subchapter C adds a new provision related to state-level complaints.
WIA regulations require that procedures be developed related to processes
for complaints, hearings, and appeals at the state level. The Commission's
WIA rules, Chapter 841, currently do not specify that a customer can
file a complaint directly with the Agency, nor do these rules specify
that the Agency may remand a complaint to the Boards for resolution.
Instead, Chapter 841 indicates that complaints first must be addressed
by the Boards before an appeal may be made to the Agency. This new
Chapter 823 provision complies with WIA regulations and provides specific
processes related to complaints filed directly with the Agency.
§823.20. State-Level Complaints
Section 823.20 relates to the responsibilities of the Agency to
establish procedures regarding complaints received at the state level.
The provisions in this section are retained and modified from other
rules in this title, which are proposed for repeal.
Section 823.20(a) specifies that a Texas Workforce Center customer
or other interested person affected by the statewide One-Stop Service
Delivery Network, including service providers alleging a noncriminal
violation of the requirements of any federal- or state-funded workforce
services, may file a complaint with the Agency. WIA regulations require
states to develop procedures to deal with complaints from participants
and other interested persons affected by the statewide workforce system.
This new provision complies with federal WIA regulations and includes
the workforce services referenced in §823.1(b).
Section 823.20(b) states that complaints shall be in writing and
filed within 180 calendar days of the alleged violation. The complaint
shall include the party's name, current mailing address, and a brief
statement of the alleged violation identifying the facts on which
the complaint is based. To maintain consistency for deadlines to file
complaints, the Commission has aligned the complaint filing deadlines
with the Board filing deadlines set forth in new Chapter 823.
Section 823.20(c) states that the complaint must be filed with
TWC Appeals, Texas Workforce Commission, 101 East 15th St., Room 410,
Austin, Texas 78778-0001. This subsection retains language from the
concurrent proposed repeal of certain sections of the Commission's
Child Care Services, Choices, FSE&T, and WIA rules.
Section 823.20(d) requires the Agency to provide an opportunity
for informal resolution. This provision allows the Agency to resolve
customers' issues in an informal manner in advance of the Agency's
appeal procedures. This follows federal WIA requirements and also
is located in §841.93, State Level Informal Resolution and Hearing
for Alleged Violations of the Requirements of WIA by the State or
for Complaints by Individuals Affected by the Statewide Program, concurrently
proposed for repeal.
Section 823.20(e) provides that if the informal resolution procedure
results in a final agreement between the parties, no hearing is required.
Section 823.20(f) states that a complaint not resolved by the informal
resolution procedure shall be set for a hearing and a decision shall
be issued in accordance with procedures for appeals under this subchapter.
This provision is similar to language in the prehearing procedures
section in repealed Chapter 823.
Section 823.20(g) notifies Boards that complaints filed directly
with the Agency may be returned to the appropriate Board to be processed
in accordance with the Board's hearing policies. The new subsection,
which complies with WIA regulations allowing complaints to be remanded
first to the appropriate Board for resolution, provides that a customer
can file a complaint directly with the Agency and that the Agency
may remand the complaint to the Board for resolution. Thus, if a person
files a complaint directly with the Agency regarding a concern with
the local provision of services as opposed to the statewide service
network, the Agency has the discretion to send the complaint to the
appropriate Board.
§823.21. Setting a Hearing
Section 823.21 identifies the necessary requirements to set an
Agency hearing. The provisions in this section are retained from the
repealed Chapter 823 with minor modifications.
Section 823.21(a) states that a WIA-funded training provider or
other provider certified by the Agency and later found to be ineligible
to receive funding as a training provider may file an appeal directly
with the Agency. Section 823.21(a) retains certain provisions from §841.49,
State Level Appeals, which is concurrently proposed for repeal. WIA
regulations at 20 C.F.R. §667.640 require states to develop a
written appeals process for appeals requested by providers found by
the Agency to be ineligible to receive WIA funding for training services.
Section 823.21(b) states that upon receipt of the appeal from a
Board decision, an appeal from a WIA-funded training provider found
to be ineligible by the Agency, or if no informal resolution of a
complaint is successfully reached, the Agency shall promptly assign
a hearing officer and mail a notice of hearing to the parties and/or
their designated representatives. The hearing shall be set and held
promptly and in no case later than as provided by applicable statute
or rule.
Section 823.21(c)(1) - (3) states that the notice of hearing shall
be in writing and include:
(1) a statement of the date, time, place, and nature of the hearing;
(2) a statement of the legal authority under which the hearing
is to be held; and
(3) a short and plain statement of the issues to be considered
during the hearing.
Section 823.21(d) provides that the notice of hearing shall be
issued at least 10 calendar days before the date of the hearing unless
a shorter period is permitted by statute.
Section 823.21(e) states that hearings shall be conducted by telephonic
means, unless an in-person hearing is required by applicable statute
or the Agency determines that an in-person hearing is necessary.
Section 823.21(f) states that parties needing special accommodations,
including the need for a bilingual or sign language interpreter, shall
make this request before the hearing is set, if possible, or as soon
as practical.
§823.22. Postponement and Continuance
Section 823.22 relates to the Agency's policies regarding the postponement
and continuance of an Agency hearing. The provisions in this section
are retained from the repealed Chapter 823 with minor modifications.
Section 823.22(a) states that the hearing officer may grant a postponement
of a hearing for good cause at a party's request. Except in emergencies
or unusual circumstances confirmed by a telephone call or other means,
postponements shall not be granted within two days of the scheduled
hearing.
Section 823.22(b)(1) - (5) provides that a continuance of a hearing
may be ordered at the discretion of the hearing officer if:
(1) there is insufficient evidence upon which to make a decision;
(2) a party needs additional time to examine evidence presented
at the hearing;
(3) the hearing officer considers it necessary to enter into evidence
additional information or testimony;
(4) an in-person hearing is necessary for proper presentation of
the evidence; or
(5) any other reason deemed appropriate by the hearing officer.
Section 823.22(c) states that the hearing officer shall advise
the parties of the reason for the continuance and of any additional
information required. At the continuance, the parties shall have an
opportunity to rebut any additional evidence.
§823.23. Evidence
Section 823.23 relates to the Agency's evidence procedures for
hearings. The provisions in this section are retained from repealed
Chapter 823 rules with minor modifications.
Section 823.23(a), Evidence Generally, states that evidence, including
hearsay evidence, shall be admitted if it is relevant and if, in the
judgment of the hearing officer, it is the kind of evidence on which
reasonably prudent persons are accustomed to rely in the conduct of
their affairs. However, the hearing officer may exclude evidence if
its probative value is outweighed by the danger of unfair prejudice,
by confusion of the issues, or by reasonable concern for undue delay,
waste of time, or needless presentation of cumulative evidence.
Section 823.23(b), Exchange of Exhibits, states that to be considered
as evidence in a decision, any document or physical evidence must
be entered as an exhibit at the hearing. Any documentary evidence
to be presented during a telephonic hearing must be exchanged with
all parties and a copy must be provided to the hearing officer in
advance of the hearing. Any documentary evidence to be presented at
an in-person hearing must be exchanged at the hearing.
Section 823.23(c), Stipulations, states that the parties, with
the consent of the hearing officer, may agree in writing to relevant
facts. The hearing officer may decide the appeal on the basis of such
stipulations or, at the hearing officer's discretion, may set the
appeal for hearing and take such further evidence as the hearing officer
deems necessary.
Section 823.23(d), Experts and Evaluations, states that if relevant
and useful, testimony from an independent expert or a professional
evaluation from a source satisfactory to the parties and the Agency
may be ordered by hearing officers, on their own motion, or at a party's
request. Any such expert or evaluation shall be at the expense of
one of the parties.
Section 823.23(e), Subpoenas, states that:
(1) The hearing officer may issue subpoenas to compel the attendance
of witnesses and the production of records. A subpoena may be issued
either at the request of a party or on the hearing officer's own motion.
(2) A party requesting a subpoena shall state the nature of the
information desired, including names of any witnesses and the records
that the requestor feels are necessary for the proper presentation
of the case.
(3) The request shall be granted only to the extent the records
or the testimony of the requested witnesses appears to be relevant
to the issues on appeal.
(4) A denial of a subpoena request shall be made in writing or
on the record, stating the reasons for such denial.
§823.24. Hearing Procedures
Section 823.24 describes the Agency's hearing procedures, which
include the presentation of evidence, examination of witnesses and
parties, additional evidence, and appropriate hearing behavior. The
provisions in this section are retained from the repealed rules and
have not substantially changed.
Section 823.24(a)(1) - (4), General Procedure, states that all
hearings shall be conducted informally and in such manner as to ascertain
the substantial rights of the parties. The hearing shall be conducted
de novo, that is, a new hearing without regard to any previous determinations
or decisions issued by a Board. The hearing officer shall develop
the evidence. All issues relevant to the appeal shall be considered
and addressed, including:
(1) presentation of evidence;
(2) examination of witnesses and parties;
(3) additional evidence; and
(4) appropriate hearing behavior.
Section 823.24(b)(1) - (3), Records, identifies the records procedures
required for an Agency hearing, including:
(1) The hearing record must include the audio recording of the
proceeding and any other relevant evidence relied on by the hearing
officer, including documents and other physical evidence entered as
exhibits.
(2) The hearing record must be maintained in accordance with federal
or state law.
(3) Confidentiality of information contained in the hearing record
must be maintained in accordance with federal and state law.
§823.25. Withdrawal of Complaint or Appeal
Section 823.25 states a party may request a withdrawal of its own
complaint or appeal at any time before a final Agency decision is
issued. The hearing officer may grant the request for withdrawal in
writing and issue an order of dismissal. Provisions in this section
are retained from the repealed rules and have not substantially changed.
§823.26. Hearing Officer Independence and Impartiality
Section 823.26 relates to the Agency hearing officers' powers and
impartiality. The provisions in this section are in part retained
from the repealed rules.
Section 823.26(a) provides that a hearing officer presiding over
a hearing shall have all powers necessary and appropriate to conduct
a full, fair, and impartial hearing. Hearing officers shall remain
independent and impartial in all matters regarding the handling of
any issues during the pendency of a case and in issuing their written
decisions.
Section 823.26(b) provides that a hearing officer shall be disqualified
if the hearing officer has a personal interest in the outcome of the
appeal or if the hearing officer directly or indirectly participated
in the determination or Board decision on appeal. Any party may present
facts to the Agency in support of a request to disqualify a hearing
officer.
Section 823.26(c) states that a hearing officer may withdraw from
a hearing to avoid the appearance of impropriety or partiality.
Section 823.26(d) states that following any disqualification or
withdrawal of a hearing officer, the Agency shall assign an alternate
hearing officer to the case. The alternate hearing officer shall not
be bound by any findings or conclusions made by the disqualified or
withdrawn hearing officer.
§823.27. Ex Parte Communications
Section 823.27 is intended to prevent improper communication with
hearing officers, to ensure that their decisions are based solely
on the evidence and arguments presented at the hearing. The section
states that:
(a) The hearing officer shall not participate in ex parte communications,
directly or indirectly, in any matter in connection with any substantive
issue, with any interested person or party. Likewise, no person shall
attempt to engage in ex parte communications with the hearing officer
on behalf of any interested person or party.
(b) If the hearing officer receives any such ex parte communication,
the other parties shall be given an opportunity to review that communication.
(c) Nothing shall prevent the hearing officer from communicating
with parties or their representatives about routine matters such as
requests for continuances or opportunities to inspect the file.
(d) The hearing officer may initiate communications with an Agency
employee who has not participated in a hearing or any determination
in the case for the limited purpose of using the special skills or
knowledge of the Agency and its staff in evaluating the evidence.
SUBCHAPTER D. AGENCY-LEVEL DECISIONS, REOPENINGS, AND REHEARINGS
The Commission proposes new Subchapter D, Agency-Level Decisions,
Reopenings, and Rehearings, as follows:
Subchapter D identifies and contains rule provisions related to
the Agency's specific responsibilities for Agency decisions, motions
to request the reopening of hearings, and motions for rehearings.
Subchapter D is similar to the repealed Subchapter D and retains many
of the provisions related to General Hearings found throughout repealed
Chapter 823.
§823.30. Hearing Decision
Section 823.30 describes the Agency's procedures related to its
hearing decisions. The provisions in this section are retained from
repealed Chapter 823 rules with minor modifications.
Section 823.30(a) states that following the conclusion of the hearing,
the hearing officer shall promptly issue a written decision on behalf
of the Agency.
Section 823.30(b)(1) - (3) states that the hearing decision shall
be based exclusively on the evidence of record in the hearing and
on matters officially noticed in the hearing and shall include:
(1) a list of the individuals who appeared at the hearing;
(2) the findings of fact and conclusions of law reached on the
issues; and
(3) the affirmation, reversal, or modification of a determination
or Board decision.
Section 823.30(c) states that the Agency may assume continuing
jurisdiction to modify or correct a hearing decision until the expiration
of 14 calendar days from the mailing date of the hearing decision
unless a party files a timely motion for rehearing.
§823.31. Motion for Reopening
Section 823.31 describes the Agency's procedures to request a reopening
of a hearing. The provisions in this section are retained from repealed
rules with minor modifications.
Section 823.31(a) states that if a party does not appear for an
Agency hearing, the party has the right to request a reopening of
the hearing within 14 calendar days from the date the Agency decision
is mailed.
Section 823.31(b) states that the motion shall be in writing and
detail the reason for failing to appear at the hearing.
Section 823.31(c) states that the hearing officer may schedule
a hearing on whether to grant the reopening.
Section 823.31(d) states the motion may be granted if it appears
to the hearing officer that the party has shown good cause for failing
to appear at the hearing.
§823.32. Motion for Rehearing and Decision
Section 823.32 describes the Agency's procedures regarding motions
for rehearings and decisions related to rehearings. The provisions
in this section are retained from repealed rules and have not substantially
changed.
Section 823.32(a) states that a party has 14 calendar days from
the date the Agency decision is mailed to file a motion for rehearing.
A rehearing may be granted only for the presentation of new evidence.
Section 823.32(b) states that motions for rehearing must be in
writing and allege the new evidence to be considered. The appellant
must show a compelling reason why the evidence was not presented at
the hearing.
Section 823.32(c) states that if the hearing officer determines
that the alleged, new evidence warrants a rehearing, a rehearing must
be scheduled at a reasonable time and place.
Section 823.32(d) states that the hearing officer shall issue a
written decision following the hearing.
Section 823.32(e) states that the hearing officer may also issue
a decision denying a motion for rehearing.
§823.33. Finality of Decision
Section 823.33 describes when the Agency hearing officer's decision
becomes final. Certain provisions in this section are retained, substantially
unchanged, from the repealed rules.
Section 823.33(a)(1) - (3) states the decision of the hearing officer
is the final decision of the Agency after the expiration of 14 calendar
days from the mailing date of the decision, unless within that time:
(1) a request for reopening is filed with the Agency;
(2) a request for rehearing is filed with the Agency; or
(3) the Agency assumes continuing jurisdiction to modify or correct
a decision.
Section 823.33(b) states any decision issued in response to a request
for reopening or rehearing or a modification or correction issued
by the Agency must be final on the expiration of 14 calendar days
from the mailing date of the decision, modification, or correction.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that for
each year of the first five years the rules will be in effect, the
following statements will apply:
There are no estimated additional costs to state government as
a result of enforcing or administering the rules. Because the proposed
sections give Boards the responsibility to conduct hearings on appeals
from all Board determinations, Boards (local governments) in the aggregate
may experience a total estimated $100,000 per year increase in costs
as they comply with the new rules requiring such appeals to be heard
at the Board level. The total for such a cost increase for any given
Board cannot be stated with certainty, and may also be influenced
by numerous factors, including the number of determinations issued,
the complexity of individual hearings, and the effectiveness of the
Board's informal resolution process, as outlined in proposed §823.12.
There are estimated corresponding reductions in cost to the state
(i.e, the Agency) of $100,000 (including indirect administration and
personnel fringe benefits) per year, as the anticipated number of
appeals conducted at the state level will be minimal over the ensuing
five-year period. No reduction in cost to local governments is anticipated
as a result of enforcing or administering the rules.
There are no foreseeable increases or losses in revenue to the
state and to local governments as a result of enforcing or administering
the rules.
Enforcing or administering these rules does not have foreseeable
implications relating to the cost or revenues of the state or local
governments, aside from those possible increases of Board costs noted
above.
There will be no probable economic costs to persons required to
comply with these rules, aside from those possible increases of Board
costs noted above, and there will be no adverse economic effect on
small businesses or microbusinesses.
The reasoning for these conclusions includes the following:
1. Recent experience indicates that the vast majority of hearings
resulting from Board actions were related to child care determinations,
and an estimated 1,600 child care hearings statewide were conducted
by the Agency during Fiscal Year 2006 (FY'06), at an estimated aggregate
annual cost of approximately $100,000. (Actual costs totaled $105,205
during FY'06 and $86,965 during FY'05, averaging $96,085 per year
over the two-year period, including all direct and indirect costs,
and including employee fringe benefits.) As a result of the proposed
rule's new hearings provisions, it is estimated that the same number
of child care hearings may be held by the Boards each year during
the ensuing five-year period. Proposed new §823.12 provisions
require that Boards provide an opportunity for informal resolution
of a complaint or appeal, and identify their responsibilities to attempt
informal resolution in advance of a formal Board hearing. In TWC's
experience, use of informal resolution in the areas of UI and wage
claims routinely results in settlement of the vast majority of disputes,
without the need for a formal hearing. An estimated 1,600 child care
appeal hearings were conducted by TWC during FY'06--most of them from
a small proportion of Boards--indicating that these particular Boards
may benefit from the institution of informal resolution procedures,
which could cause the number of hearings to decline from previous
years. While there is no reasonable alternative basis to estimate
future potential costs than to estimate the same number of child care
hearings, at the average estimated annual aggregated cost of such
Agency hearings (for example, the cost of Board hearings could increase
during the initial period of time following the proposed rules going
into effect--particularly regarding child care appeals for those few
Boards that have been relying disproportionately on the Agency to
conduct such appeals--then subsequently decline during the ensuing
period as experience is gained), TWC believes that the quicker and
more effectively the informal complaint and resolution provisions
are instituted by Boards, the greater the likelihood that fewer hearings
will be needed. Also, as noted in Part I. Purpose, Background, and
Authority for these proposed rules, the Commission intends to provide
training and technical assistance in order to assist Boards with implementation
of these rules, including training on informal resolution procedures,
hearing officer training, sample forms for complaints or resolution
procedures, or other assistance in order to minimize costs as much
as possible.
2. The reasoning for concluding that there will be no adverse economic
effect on small businesses or microbusinesses is that small or microbusinesses
are not regulated by these rules, except for those career schools
or colleges that may be small businesses or microbusinesses. The proposed
repeal of Chapter 823 hearings and appeals rules for career schools
and colleges and the addition of new Chapter 807 Career Schools and
Colleges hearings and appeals rules do not apparently represent a
significant change and is not additionally substantively burdensome
for small or microbusinesses.
Mark Hughes, Director, Labor Market Information, has determined
that there is no significant negative impact upon employment conditions
in the state as a result of the rules.
Laurence M. Jones, Director, Workforce Development Division, has
determined that for each year of the first five years the rules are
in effect, the public benefit anticipated as a result of enforcing
the proposed rules will be to provide a unified and streamlined process
regarding the resolution of complaints, hearings, and appeals related
to Board-administered workforce services. In addition, due process
principles and other legal rights will be protected, program outcomes
will be achieved more effectively, and workforce services will be
further integrated.
The Agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the Agency's legal authority
to adopt.
PART IV. COORDINATION ACTIVITIES
Comments on the proposed rules may be submitted to TWC Policy Comments,
Workforce and UI Policy, 101 East 15th Street, Room 440T, Austin,
Texas 78778; faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days
from the date this proposal is published in the
Texas Register.
Subchapter A. GENERAL PROVISIONS
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in
the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor
Code §301.0015 and §302.002(d), which provide the Texas
Workforce Commission with the authority to adopt, amend, or repeal
such rules as it deems necessary for the effective administration
of Agency services and activities, and the Texas Human Resources Code §44.002,
regarding Administrative Rules.
The proposed repeals affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as the Texas Government Code, Chapter
2308.
§823.1.Short Title and Purpose.
§823.2.Definitions.
§823.3.Information on Right of Appeal.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 27, 2007.
TRD-200702707
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in
the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor
Code §301.0015 and §302.002(d), which provide the Texas
Workforce Commission with the authority to adopt, amend, or repeal
such rules as it deems necessary for the effective administration
of Agency services and activities, and the Texas Human Resources Code §44.002,
regarding Administrative Rules.
The proposed repeals affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as the Texas Government Code, Chapter
2308.
§823.11.Request for Hearing.
§823.12.Setting of Hearing.
§823.13.Postponement.
§823.14.Evidence.
§823.15.Hearing Officer Disqualification and Withdrawal.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702708
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in
the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor
Code §301.0015 and §302.002(d), which provide the Texas
Workforce Commission with the authority to adopt, amend, or repeal
such rules as it deems necessary for the effective administration
of Agency services and activities, and the Texas Human Resources Code §44.002,
regarding Administrative Rules.
The proposed repeals affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as the Texas Government Code, Chapter
2308.
§823.31.Hearing Procedure.
§823.32.Continuance of Hearing.
§823.33.Withdrawal of Appeal.
§823.34.Change in Determination.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702709
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
(Editor's note: The text of the following sections proposed
for repeal will not be published. The sections may be examined in
the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor
Code §301.0015 and §302.002(d), which provide the Texas
Workforce Commission with the authority to adopt, amend, or repeal
such rules as it deems necessary for the effective administration
of Agency services and activities, and the Texas Human Resources Code §44.002,
regarding Administrative Rules.
The proposed repeals affect Texas Labor Code, Title 4, particularly
Chapters 301 and 302, as well as the Texas Government Code, Chapter
2308.
§823.41.Decision.
§823.42.Reopened Decision for Non-appearance.
§823.43.Rehearing Decision.
§823.44.Finality of Decision.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702710
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
Subchapter A. GENERAL PROVISIONS
The new rules are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities.
The new rules affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§823.1.Short Title and Purpose.
(a)
This chapter provides an appeals process to the
extent authorized by federal and state law and by rules administered
by the Texas Workforce Commission (Agency).
(b)
This section applies only to complaints or determinations
regarding federal- or state-funded workforce services administered
by the Agency or Local Workforce Development Boards (Boards), as follows:
(1)
Child care;
(2)
Temporary Assistance for Needy Families (TANF)
Choices;
(3)
Food Stamp Employment and Training (FSE&T);
(4)
Project Reintegration of Offenders (Project RIO);
(5)
Workforce Investment Act (WIA) Adult, Dislocated
Worker, and Youth; and
(6)
Eligible Training Providers (ETP) receiving WIA
funds or other funds for training services.
(c)
Determinations or complaints relating to the following
matters are not governed by this chapter:
(1)
Across-the-board reductions of services, benefits,
or assistance to a class of recipients;
(2)
Matters governed by hearing procedures otherwise
provided for in this title;
(3)
Alleged violations of nondiscrimination and equal
opportunity requirements;
(4)
Denial of benefits as it relates to mandatory work
requirements for individuals receiving TANF and FSE&T services
and is administered through the Texas Health and Human Services Commission
(HHSC);
(5)
Matters governing job service-related complaints
as referenced in 20 C.F.R. Part 658, Subpart E, §§400 -
418 and the federal Employment Service law;
(6)
Services provided by the Commission pursuant to
Texas Labor Code §301.023 - Complaints Against the Commission;
or
(7)
Alleged criminal violations of any services referenced
in §823.1(b).
§823.2.Definitions.
The following words and terms, when used in this chapter, have
the following meanings, unless the context clearly indicates otherwise.
(1)
Adverse action--Any denial or reduction in benefits
or services to a party, including displacement from current employment
by a Texas Workforce Center customer.
(2)
Agency decision--The written finding issued by
an Agency hearing officer following a hearing before that hearing
officer.
(3)
Appeal--A written request for a review filed with
the Board or Agency by a person in response to a determination or
decision.
(4)
Board decision--The written finding issued by a
Board hearing officer following a hearing before that hearing officer
in response to an appeal or complaint.
(5)
Complaint--A written statement alleging a violation
of any law, regulation, or rule relating to any federal- or state-funded
workforce service.
(6)
Determination--A written statement issued to a
Texas Workforce Center customer by a Board, its designee, or the Agency
relating to an adverse action, or to a provider or contractor relating
to denial or termination of eligibility under programs administered
by the Agency or a Board listed in §823.1(b).
(7)
Hearing officer--An impartial individual designated
by either the Board or the Agency to conduct hearings and issue administrative
decisions.
(8)
Informal resolution--Any procedure that results
in an agreed final settlement between all parties to a complaint or
an appeal.
(9)
Party--A person who files a complaint or who appeals
a determination or the entity against which the complaint is filed
or that issued the determination.
§823.3.Agency and Board Timeliness.
(a)
A properly addressed determination or decision
is final for all purposes unless the party to whom it is mailed files
an appeal no later than the fourteenth calendar day after the mailing
date.
(b)
Each party to a complaint or an appeal shall promptly
notify, in writing, the Board, Board's designee, or the Agency with
which the complaint or appeal was filed of any change of mailing address.
Determinations and decisions shall be mailed to this address.
(1)
A copy of the determination or decision must be
mailed to a properly designated party representative in order for
it to become final.
(2)
The Board or Agency is responsible for making an
address change only if the Board or Agency is specifically directed
by the party to mail subsequent correspondence to the new address.
(3)
If the Board, Board's designee, or Agency addresses
a document incorrectly, but the party receives the document, the time
frame for filing an appeal shall begin as of the actual date of receipt
by the party, whether or not the party receives the document within
the appeal time frame set forth in subsection (a) of this section.
However, this does not apply if the party fails to provide a current
address or provides an incorrect address.
(c)
A determination or decision mailed to a party shall
be presumed to have been delivered if the document was mailed as specified
in subsection (b) of this section.
(1)
A determination or decision shall not be presumed
to have been delivered:
(A)
if there is tangible evidence of nondelivery, such
as being returned to sender by the U.S. Postal Service; or
(B)
if credible and persuasive evidence is submitted
to establish nondelivery or delayed delivery to the proper address.
(2)
If a party provides the Board or Agency with an
incorrect mailing address, a mailing to that address shall be considered
a proper mailing, even if there is proof that the party never received
the document.
(d)
A complaint or an appeal shall be in writing. Complaints
or appeals may be filed electronically only if filed in a form approved
by the Agency in writing. The filing date for a complaint or an appeal
shall be:
(1)
the postmarked date or the postal meter date (where
there is only one or the other);
(2)
the postmarked date, if there is both a postmark
date and a postal meter date;
(3)
the date the document was delivered to a common
carrier, which is equivalent to the postmarked date;
(4)
three business days before receipt by the Board
or Agency, if the document was received in an envelope bearing no
legible postmark, postal meter date, or date of delivery by a common
carrier;
(5)
the date of the document itself, if the document
date is fewer than three days earlier than the date of receipt and
if the document was received in an envelope bearing no legible postmark,
postal meter date, or date of delivery by a common carrier;
(6)
the date of the document itself, if the mailing
envelope containing the complaint or appeal is lost after delivery
to the Board or Agency. If the document is undated, the filing date
shall be deemed to be three business days before receipt by the Board
or Agency; or
(7)
the date of receipt by the Board or Agency, if
the document was filed by fax.
(e)
Credible and persuasive testimony under oath, subject
to cross-examination, may establish a filing date that is earlier
than the dates established under subsection (d) of this section. A
party shall be allowed to establish a filing date earlier than a postal
meter date or the date of the document itself only upon a showing
of extremely credible and persuasive evidence. Likewise, when a party
alleges that a complaint or appeal has been filed that the Board or
Agency has never received, the party must present extremely credible
and persuasive evidence to support the allegation.
(f)
A decision or determination shall not be deemed
final if a party shows that a representative of the Board, Board's
designee, or Agency has given misleading information on appeal rights
to the party. The party shall specifically establish:
(1)
how the party was misled; or
(2)
what misleading information the party was given,
and, if possible, by whom the party was misled.
(g)
There is no good cause exception to the timeliness
rules.
§823.4.Representation.
Each party may authorize a hearing representative to assist
in presenting a complaint or an appeal on behalf of the party under
this chapter. The Agency or Board may require authorization to be
in writing. On behalf of the party, the hearing representative may
exercise any of the party's rights under this chapter.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702711
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
The new rules are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities.
The new rules affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§823.10.Board-Level Complaints.
(a)
Persons who may file a complaint include:
(1)
Texas Workforce Center customers;
(2)
other interested persons affected by the One-Stop
Service Delivery Network, including subrecipients and eligible training
providers; and
(3)
previously employed individuals who believe they
were displaced by a Texas Workforce Center customer participating
in work-based services such as subsidized employment, work experience,
or workfare.
(b)
Complaints shall be in writing and filed within
180 days of the alleged violation.
(c)
The complaint shall include:
(1)
the party's name and current mailing address; and
(2)
a brief statement of the alleged violation identifying
the facts on which the complaint is based.
(d)
Each Board shall ensure that information about
complaint procedures is provided to individuals, eligible training
providers, and subrecipients. The information provided shall be presented
in such a manner as to be understood by the affected individuals,
including youth, individuals with disabilities, and individuals with
limited English proficiency. This information shall be:
(1)
posted in a conspicuous public location at each
Texas Workforce Center;
(2)
provided in writing to any customer;
(3)
made available in writing to any individual upon
request; and
(4)
placed in each Texas Workforce Center customer's
file.
§823.11.Determinations.
(a)
A determination affecting the type and level of
services to be provided by a Board or its designee shall be promptly
provided to any person directly affected.
(b)
The determination shall include the following:
(1)
A brief statement of the adverse action;
(2)
The mailing date of the determination;
(3)
An explanation of the individual's right to an
appeal;
(4)
The procedures for filing an appeal to the Board,
including applicable time frames as required in §823.3;
(5)
The right to have a hearing representative, including
legal counsel; and
(6)
The address or fax number to send the appeal.
(c)
Boards shall allow providers of training services
the opportunity to appeal a determination related to the:
(1)
denial of eligibility as a training provider under
WIA §122(b), §122(c), or §122(e);
(2)
termination of eligibility as a training provider
or other action under WIA §122(f); or
(3)
denial of eligibility as a training provider of
on-the-job or customized training by the operator of a Texas Workforce
Center under WIA §122(h).
(d)
A person that receives a determination from a Board
or a Board's designee may file an appeal with the Board requesting
a review of the determination. The appeal must be submitted in writing,
filed within 14 calendar days of the mailing date of the determination,
and include the party's proper mailing address.
§823.12.Board Informal Resolution Procedure.
(a)
Boards shall provide an opportunity for informal
resolution of a complaint or appeal.
(b)
Informal resolution may include but is not limited
to:
(1)
informal meetings with case managers or their supervisors;
(2)
second reviews of the case file;
(3)
telephone calls or conference calls to the affected
parties;
(4)
in-person interviews with all affected parties;
or
(5)
written explanations or summaries of the laws or
regulations involved in the complaint.
§823.13.Board Hearings.
(a)
If the informal resolution procedure results in
a final agreement between the parties, no hearing shall be held.
(b)
If no final informal resolution is reached, Boards
shall provide an opportunity for a hearing to resolve an appeal or
complaint.
(c)
Either a final agreement resulting from informal
resolution or a hearing and Board decision shall be completed within
60 calendar days of the original filing of the appeal or complaint.
(d)
Boards shall provide a process that allows an individual
alleging a labor standards violation to submit a complaint to a binding
arbitration procedure, if a collective bargaining agreement covering
the parties to the complaint so provides.
(e)
Within 60 calendar days of the filing of the appeal
or complaint, the Board shall send the parties a decision setting
forth the results of the hearing. The decision shall be issued by
a Board hearing officer, shall include findings of fact and conclusions
of law, and shall provide information about appeal rights to the parties.
(f)
If no Board decision is mailed within the 60 calendar-day
time frame described in subsection (e) of this section or if any party
disagrees with a timely Board decision, a party may file an appeal
with the Agency.
(g)
An appeal to the Agency shall be filed in writing
with TWC Appeals, Texas Workforce Commission, 101 East 15th St., Room
410, Austin, Texas 78778-0001, within 14 calendar days after the mailing
date of the Board's decision. If the Board does not issue a decision
within 60 calendar days of the date of the filing of the original
appeal or complaint, an appeal to the Agency must be filed no later
than 90 calendar days after the filing date of the original appeal
or complaint.
§823.14.Board Policies for Resolving Complaints and Appeals of Determinations.
(a)
A Board shall establish written policies to handle
complaints and appeals of determinations, provide the opportunity
for informal resolution, and conduct hearings in compliance with this
subchapter for individuals, eligible training providers, and other
persons affected by the One-Stop Service Delivery Network, including
subrecipients.
(b)
A Board shall maintain written copies of these
policies, and make them available to the Agency, Texas Workforce Center
customers, and other interested persons upon request. A Board shall
require that its subrecipients provide these policies to Texas Workforce
Center customers and other interested persons upon request.
(c)
At a minimum, a Board shall develop and approve
policies to:
(1)
ensure that determinations are provided as specified
in §823.11;
(2)
ensure that information about complaint procedures
is available as described in §823.10(d);
(3)
notify persons that complaints must be submitted
in writing and set forth the facts on which the complaint is based,
and notify them of the time limit in which to file a complaint;
(4)
maintain a complaint log and all complaint-related
materials in a secure file for a period of three years;
(5)
designate an individual to be responsible for investigation,
documentation, monitoring, and following up on complaints;
(6)
inform persons of the:
(A)
right to file a complaint;
(B)
right to appeal a determination;
(C)
opportunity for informal resolution and a Board
hearing;
(D)
time frame in which to either reach informal resolution
or to issue a Board decision; and
(E)
right to file an appeal to the Agency, including
providing information on where to file the appeal;
(7)
designate hearing officers to conduct Board hearings,
document actions taken, and render decisions; and
(8)
ensure that complaints remanded from the Agency
to the Board for resolution are handled in a timely fashion and follow
established Board policies and time frames.
(d)
Complaints filed directly with the Agency may be
remanded to the appropriate Board to be processed in accordance with
the Board's policies for resolving complaints.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702712
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
The new rules are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities.
The new rules affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§823.20.State-Level Complaints.
(a)
A Texas Workforce Center customer or other interested
person affected by the statewide One-Stop Service Delivery Network,
including service providers that allege a noncriminal violation of
the requirements of any federal- or state-funded workforce services,
may file a complaint with the Agency.
(b)
Complaints shall be in writing and filed within
180 calendar days of the alleged violation. The complaint shall include
the party's name, current mailing address, and a brief statement of
the alleged violation identifying the facts on which the complaint
is based.
(c)
The complaint shall be filed with TWC Appeals,
Texas Workforce Commission, 101 East 15th St., Room 410, Austin, Texas
78778-0001.
(d)
The Agency shall provide an opportunity for informal
resolution.
(e)
If the informal resolution procedure results in
a final agreement between the parties, no hearing shall be held.
(f)
If no final informal resolution is reached, the
complaint shall be promptly set for a hearing and a decision shall
be issued in accordance with the procedures for appeals under this
subchapter.
(g)
Complaints filed directly with the Agency may be
remanded to the appropriate Board to be processed in accordance with
the Board's hearing policies.
§823.21.Setting a Hearing.
(a)
A WIA-funded training provider or other provider
certified by the Agency and later found to be ineligible to receive
funding as a training provider may file an appeal directly with the
Agency.
(b)
Upon receipt of an appeal from a Board decision,
an appeal pursuant to subsection (a) of this section, or if no informal
resolution of a complaint is successfully reached pursuant to §823.20,
the Agency shall promptly assign a hearing officer and mail a notice
of hearing to the parties and/or their designated representatives.
The hearing shall be set and held promptly and in no case later than
as provided by applicable statute or rule.
(c)
The notice of hearing shall be in writing and include
a:
(1)
statement of the date, time, place, and nature
of the hearing;
(2)
statement of the legal authority under which the
hearing is to be held; and
(3)
short and plain statement of the issues to be considered
during the hearing.
(d)
The notice of hearing shall be issued at least
10 calendar days before the date of the hearing unless a shorter period
is permitted by statute.
(e)
Hearings shall be conducted by telephonic means,
unless an in-person hearing is required by applicable statute or the
Agency determines that an in-person hearing is necessary.
(f)
Parties needing special accommodations, including
the need for a bilingual or sign language interpreter, shall make
this request before the hearing is set, if possible, or as soon as
practical.
§823.22.Postponement and Continuance.
(a)
The hearing officer may grant a postponement of
a hearing for good cause at a party's request. Except in emergencies
or unusual circumstances confirmed by a telephone call or other means,
no postponements shall be granted within two days of the scheduled
hearing.
(b)
A continuance of a hearing may be ordered at the
discretion of the hearing officer if:
(1)
there is insufficient evidence upon which to make
a decision;
(2)
a party needs additional time to examine evidence
presented at the hearing;
(3)
the hearing officer considers it necessary to enter
into evidence additional information or testimony;
(4)
an in-person hearing is necessary for proper presentation
of the evidence; or
(5)
any other reason deemed appropriate by the hearing
officer.
(c)
The hearing officer shall advise the parties of
the reason for the continuance and of any additional information required.
At the continuance, the parties shall have an opportunity to rebut
any additional evidence.
§823.23.Evidence.
(a)
Evidence Generally. Evidence, including hearsay
evidence, shall be admitted if it is relevant and if in the judgment
of the hearing officer it is the kind of evidence on which reasonably
prudent persons are accustomed to rely in the conduct of their affairs.
However, the hearing officer may exclude evidence if its probative
value is outweighed by the danger of unfair prejudice, by confusion
of the issues, or by reasonable concern for undue delay, waste of
time, or needless presentation of cumulative evidence.
(b)
Exchange of Exhibits. To be considered as evidence
in a decision, any document or physical evidence must be entered as
an exhibit at the hearing. Any documentary evidence to be presented
during a telephonic hearing shall be exchanged with all parties and
a copy shall be provided to the hearing officer in advance of the
hearing. Any documentary evidence to be presented at an in-person
hearing shall be exchanged at the hearing.
(c)
Stipulations. The parties, with the consent of
the hearing officer, may agree in writing to relevant facts. The hearing
officer may decide the appeal on the basis of such stipulations or,
at the hearing officer's discretion, may set the appeal for hearing
and take such further evidence as the hearing officer deems necessary.
(d)
Experts and Evaluations. If relevant and useful,
testimony from an independent expert or a professional evaluation
from a source satisfactory to the parties and the Agency may be ordered
by hearing officers, on their own motion or at a party's request.
Any such expert or evaluation shall be at the expense of one of the
parties.
(e)
Subpoenas.
(1)
The hearing officer may issue subpoenas to compel
the attendance of witnesses and the production of records. A subpoena
may be issued either at the request of a party or on the hearing officer's
own motion.
(2)
A party requesting a subpoena shall state the nature
of the information desired, including names of any witnesses and the
records that the requestor feels are necessary for the proper presentation
of the case.
(3)
The request shall be granted only to the extent
the records or the testimony of the requested witnesses appears to
be relevant to the issues on appeal.
(4)
A denial of a subpoena request shall be made in
writing or on the record, stating the reasons for such denial.
§823.24.Hearing Procedures.
(a)
General Procedure. All hearings shall be conducted
de novo. The hearing shall be conducted informally and in such manner
as to ascertain the substantial rights of the parties. The hearing
officer shall develop the evidence. All issues relevant to the appeal
shall be considered and addressed.
(1)
Presentation of Evidence. The parties to an appeal
may present evidence that is material and relevant, as determined
by the hearing officer. In conducting a hearing, the hearing officer
shall actively develop the record on the relevant circumstances and
facts to resolve all issues. To be considered as evidence in a decision,
any document or physical evidence must be entered as an exhibit at
the hearing.
(2)
Examination of Witnesses and Parties. The hearing
officer shall examine parties and any witnesses and shall allow cross-examination
to the extent the hearing officer deems necessary to afford the parties
due process.
(3)
Additional Evidence. The hearing officer, with
or without notice to any of the parties, may take additional evidence
deemed necessary, provided that a party shall be given an opportunity
to rebut the evidence if it is to be used against the party's interest.
(4)
Appropriate Hearing Behavior. All parties shall
conduct themselves in an appropriate manner. The hearing officer may
expel any individual, including a party, who fails to correct behavior
the hearing officer identifies as disruptive. After an expulsion,
the hearing officer may proceed with the hearing and render a decision.
(b)
Records
(1)
The hearing record shall include the audio recording
of the proceeding and any other relevant evidence relied on by the
hearing officer, including documents and other physical evidence entered
as exhibits.
(2)
The hearing record shall be maintained in accordance
with federal or state law.
(3)
Confidentiality of information contained in the
hearing record shall be maintained in accordance with federal and
state law.
§823.25.Withdrawal of Complaint or Appeal.
A party may request a withdrawal of its own complaint or appeal
at any time before a final Agency decision is issued. The hearing
officer may grant the request for withdrawal in writing and issue
an order of dismissal.
§823.26.Hearing Officer Independence and Impartiality.
(a)
A hearing officer presiding over a hearing shall
have all powers necessary and appropriate to conduct a full, fair,
and impartial hearing. Hearing officers shall remain independent and
impartial in all matters regarding the handling of any issues during
the pendency of a case and in issuing their written decisions.
(b)
A hearing officer shall be disqualified if the
hearing officer has a personal interest in the outcome of the appeal
or if the hearing officer directly or indirectly participated in the
determination or Board decision on appeal. Any party may present facts
to the Agency in support of a request to disqualify a hearing officer.
(c)
A hearing officer may withdraw from a hearing to
avoid the appearance of impropriety or partiality.
(d)
Following any disqualification or withdrawal of
a hearing officer, the Agency shall assign an alternate hearing officer
to the case. The alternate hearing officer shall not be bound by any
findings or conclusions made by the disqualified or withdrawn hearing
officer.
§823.27.Ex Parte Communications.
(a)
The hearing officer shall not participate in ex
parte communications, directly or indirectly, in any matter in connection
with any substantive issue, with any interested person or party. Likewise,
no person shall attempt to engage in ex parte communications with
the hearing officer on behalf of any interested person or party.
(b)
If the hearing officer receives any such ex parte
communication, the other parties shall be given an opportunity to
review that communication.
(c)
Nothing shall prevent the hearing officer from
communicating with parties or their representatives about routine
matters such as requests for continuances or opportunities to inspect
the file.
(d)
The hearing officer may initiate communications
with an Agency employee who has not participated in a hearing or any
determination in the case for the limited purpose of using the special
skills or knowledge of the Agency and its staff in evaluating the
evidence.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702713
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
The new rules are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities.
The new rules affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§823.30.Hearing Decision.
(a)
Following the conclusion of the hearing, the hearing
officer shall promptly issue a written decision on behalf of the Agency.
(b)
The Agency decision shall be based exclusively
on the evidence of record in the hearing and on matters officially
noticed in the hearing. The Agency decision shall include:
(1)
a list of the individuals who appeared at the hearing;
(2)
the findings of fact and conclusions of law reached
on the issues; and
(3)
the affirmation, reversal, or modification of a
determination or Board decision.
(c)
Unless a party files a timely motion for rehearing,
the Agency may assume continuing jurisdiction to modify or correct
a hearing decision until the expiration of 14 calendar days from the
mailing date of the hearing decision.
§823.31.Motion for Reopening.
(a)
If a party does not appear for an Agency hearing,
the party has the right to request a reopening of the hearing within
14 calendar days from the date the Agency decision is mailed.
(b)
The motion shall be in writing and detail the reason
for failing to appear at the hearing.
(c)
The hearing officer may schedule a hearing on whether
to grant the reopening.
(d)
The motion may be granted if it appears to the
hearing officer that the party has shown good cause for failing to
appear at the hearing.
§823.32.Motion for Rehearing and Decision.
(a)
A party has 14 calendar days from the date the
decision is mailed to file a motion for rehearing. A rehearing may
be granted only for the presentation of new evidence.
(b)
Motions for rehearing shall be in writing and allege
the new evidence to be considered. The appellant must show a compelling
reason why this evidence was not presented at the hearing.
(c)
If the hearing officer determines that the alleged,
new evidence warrants a rehearing, a rehearing shall be scheduled
at a reasonable time and place.
(d)
The hearing officer shall issue a written decision
following the hearing.
(e)
The hearing officer may also issue a decision denying
a motion for rehearing.
§823.33.Finality of Decision.
(a)
The decision of the hearing officer is the final
decision of the Agency after the expiration of 14 calendar days from
the mailing date of the decision unless within that time:
(1)
a request for reopening is filed with the Agency;
(2)
a request for rehearing is filed with the Agency;
or
(3)
the Agency assumes continuing jurisdiction to modify
or correct a decision.
(b)
Any decision issued in response to a request for
reopening or rehearing or a modification or correction issued by the
Agency shall be final on the expiration of 14 calendar days from the
mailing date of the decision, modification, or correction.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702714
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
The Texas Workforce Commission (Commission) proposes the repeal
of the following sections of Chapter 841 relating to the Workforce
Investment Act (WIA):
Subchapter C, Training Provider Certification, §841.48 and §841.49
Subchapter D, Local Area Grievance Procedure, §§841.61
- 841.69
Subchapter E, State Level Hearing, §§841.91 - 841.93
and 841.95 - 841.96
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART III. IMPACT STATEMENTS
PART IV. COORDINATION ACTIVITIES
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the proposed rule change is to establish detailed
and consistent procedures for complaints, hearings, and appeals related
to workforce services administered by Local Workforce Development
Boards (Boards). Texas Labor Code §302.065 requires that the
Commission integrate the administration of multiple federal block
grant programs and identify policy changes that support this integration.
The Commission expanded this integration to state-funded workforce
services, including examining the existing complaints and appeals
processes for workforce services administered by the Boards. An absence
of unified and integrated rules on complaints, hearings, and appeals
related to workforce services makes the existing rules difficult to
understand or interpret consistently and works as a barrier to integrating
workforce services.
To maintain uniformity and consistency across all Board-administered
workforce services and to protect due process rights of Texas Workforce
Center customers, in a separate, but concurrent, rulemaking proposal,
the Commission is proposing the repeal of Chapter 823, General Hearings
rules, and is proposing new Chapter 823, Integrated Complaints, Hearings,
and Appeals rules. New Chapter 823 requires Boards to establish local
policies related to filing complaints, to provide opportunities for
informal resolutions, and to establish procedures for Board hearings
and appeals.
The Commission has reviewed sections of Chapter 841 relating to
complaints or grievances, local-level appeals, and state-level hearings.
The Commission proposes to repeal these sections and incorporate similar
processes related to complaints, hearings, and appeals in new Chapter
823, including the complaints and appeals process that is currently
established in the Workforce Investment Act (WIA) regulations at 20
C.F.R. §667.600 and §667.640.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER C. TRAINING PROVIDER CERTIFICATION
The Commission proposes amendments to Subchapter C, as follows:
Under a separate, but concurrent, rulemaking proposal, the Commission
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals, which comprises the complaint, hearing, and appeal procedures
for all Board-administered workforce services, including the information
in the following sections.
§841.48. Local Appeals
Section 841.48, procedures established by Boards for appeals requested
by eligible training providers found by the Boards to be ineligible
to receive WIA funding for training services, is repealed and the
information is relocated in new Chapter 823.
§841.49. State Level Appeals
Section 841.49, procedures established by the Agency for appeals
requested by eligible training providers found by the Agency to be
ineligible to receive WIA funding for training services, is repealed
and the information relocated in new Chapter 823.
SUBCHAPTER D. LOCAL AREA GRIEVANCE PROCEDURE
The Commission proposes the repeal of Subchapter D, as follows:
Under a separate, but concurrent, rulemaking proposal, the Commission
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals, which comprises the complaint, hearing, and appeal procedures
for all Board-administered workforce services, including the information
in the following sections.
§841.61. Purpose and Coverage
Section 841.61, procedures for resolving allegations of violations
of the requirements of WIA in the operation of local WIA programs
and activities, is repealed and the information is relocated in new
Chapter 823.
§841.62. Grievance Filing Procedures at the Local Level
Section 841.62, grievance procedures established by the Board to
notify any participant or other affected party alleging a violation
of the requirements of WIA at the local level of the right to file
a complaint, is repealed and the information is relocated in new Chapter
823.
§841.63. Time Limitations at Local Level
Section 841.63, the length of time required to file a complaint
alleging noncriminal violations of the requirements of WIA, is repealed
and the information is relocated in new Chapter 823.
§841.64. LWDB Responsibilities
Section 841.64, responsibilities of the Boards regarding grievance
procedures, is repealed and the information is relocated in new Chapter
823.
§841.65. Local Level Informal Conference Procedure
Section 841.65, Board requirements regarding informal resolutions,
is repealed and the information is relocated in new Chapter 823.
§841.66. Local Level Hearing Procedure
Section 841.66, Board requirements to establish local hearing procedures
for parties dissatisfied with the results of an informal conference,
is repealed and the information is relocated in new Chapter 823.
§841.67. Written Decision
Section 841.67, requirements for hearing officers to provide a
written decision to all parties to a complaint, is repealed and the
information is relocated in new Chapter 823.
§841.68. Remedies
Section 841.68, remedies that may be imposed as enumerated at WIA §181(c)(3),
is repealed and the information is relocated in new Chapter 823.
§841.69. Appeal
Section 841.69, procedures for filing an appeal to the Agency if
a party is dissatisfied with the results of a local level hearing,
is repealed and the information is relocated in new Chapter 823.
SUBCHAPTER E. STATE LEVEL HEARING
The Commission proposes amendments to Subchapter E, as follows:
Under a separate, but concurrent, rulemaking proposal, the Commission
is proposing new Chapter 823, Integrated Complaints, Hearings, and
Appeals, which comprises the complaint, hearing, and appeal procedures
for all Board-administered workforce services, including the information
in the following sections.
§841.91. Scope
Section 841.91, related to the scope of this subchapter, is repealed
and the information is relocated in new Chapter 823.
§841.92. Review Procedure for Appeals Made Under §841.69
Section 841.92, procedures established by the Agency to select
an impartial hearing officer to review the record to determine if
a party was afforded a process that was held in compliance with WIA
and local grievance procedures, is repealed and the information is
relocated in new Chapter 823.
§841.93. State Level Informal Resolution and Hearing for Alleged
Violations of the Requirements of WIA by the State or for Complaints
by Individuals Affected by the Statewide Program
Section 841.93, Agency requirements to establish procedures for
state level informal resolutions and hearings for alleged violations
of the requirements of WIA by the state or for complaints by individuals
affected by the statewide program, is repealed and the information
is relocated in new Chapter 823.
§841.95. Referral of Local Complaints
Section 841.95, complaints arising under Subchapter D and made
directly to the Commission, is repealed and the information is relocated
in new Chapter 823.
§841.96. Appeal to Secretary of Labor
Section 841.96, appeals made to the Secretary of Labor pursuant
to 20 C.F.R. §§667.610, 667.640, 667.645, and 667.650, is
repealed and the information is relocated in new Chapter 823.
PART III. IMPACT STATEMENTS
Randy Townsend, Chief Financial Officer, has determined that for
each year of the first five years the rules will be in effect, the
following statements will apply:
There are no additional estimated costs to the state and local
governments expected as a result of enforcing or administering the
rules.
There are no estimated reductions in costs to the state and to
local governments as a result of enforcing or administering the rules.
There are no estimated losses or increases in revenue to the state
or to local governments as a result of enforcing or administering
the rules.
There are no foreseeable implications relating to costs or revenue
of the state or local governments as a result of enforcing or administering
the rules.
There are no anticipated economic costs to persons required to
comply with the rules.
There is no anticipated adverse economic impact on small or microbusinesses
as a result of enforcing or administering the rules.
Mark Hughes, Director of Labor Market Information, has determined
that there is no significant negative impact upon employment conditions
in the state as a result of the rules.
Laurence M. Jones, Director, Workforce Development Division, has
determined that for each year of the first five years the rules are
in effect, the public benefit anticipated as a result of enforcing
the proposed rules will be to provide a unified and streamlined process
regarding the resolution of complaints, hearings, and appeals related
to Board-administered workforce services. In addition, due process
principles and other legal rights will be protected, program outcomes
will be achieved more effectively, and workforce services will be
further integrated.
The Agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the Agency's legal authority
to adopt.
PART IV. COORDINATION ACTIVITIES
Comments on the proposed rules may be submitted to TWC Policy Comments,
Workforce and UI Policy, 101 East 15th Street, Room 440T, Austin,
Texas 78778; faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us.
The Commission must receive comments postmarked no later than 30 days
from the date this proposal is published in the
Texas Register.
Subchapter C. TRAINING PROVIDER CERTIFICATION
(Editor's note: The text of the following sections
proposed for repeal will not be published. The sections may be examined
in the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities, and Texas Human Resources Code §44.002, regarding
Administrative Rules.
The repeals affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§841.48.Local Appeals.
§841.49.State Level Appeals.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on June 27, 2007.
TRD-200702715
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
(Editor's note: The text of the following sections
proposed for repeal will not be published. The sections may be examined
in the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities, and Texas Human Resources Code §44.002, regarding
Administrative Rules.
The repeals affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§841.61.Purpose and Coverage.
§841.62.Grievance Filing Procedures at the Local Level.
§841.63.Time Limitations at Local Level.
§841.64.LWDB Responsibilities.
§841.65.Local Level Informal Conference Procedure.
§841.66.Local Level Hearing Procedure.
§841.67.Written Decision.
§841.68.Remedies.
§841.69.Appeal.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702716
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
40 TAC §§841.91 - 841.93, 841.95, 841.96
(Editor's note: The text of the following sections
proposed for repeal will not be published. The sections may be examined
in the offices of the Texas Workforce Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
Austin.)
The repeals are proposed under Texas Labor Code §301.0015
and §302.002(d), which provide the Texas Workforce Commission
with the authority to adopt, amend, or repeal such rules as it deems
necessary for the effective administration of Agency services and
activities, and Texas Human Resources Code §44.002, regarding
Administrative Rules.
The repeals affect Texas Labor Code, Title 4, particularly Chapters
301 and 302, as well as Texas Government Code, Chapter 2308.
§841.91.Scope.
§841.92.Review Procedure for Appeals Made Under §841.69.
§841.93.State Level Informal Resolution and Hearing for Alleged Violations of the Requirements of WIA by the State or for Complaints by Individuals Affected by the Statewide Program.
§841.95.Referral of Local Complaints
§841.96.Appeal to Secretary of Labor
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed
with the Office of the Secretary of State on June 27, 2007.
TRD-200702717
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery
Branch
Texas Workforce Commission
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 475-0829
his/her
] approved
plan utilizing Social Security work incentive provisions (i.e.,
local authority
bills
] the person the monthly account amount for the specific
services up to the identified payment amount. If the monthly account
amount for the specific services is greater than the identified payment
amount, then the remaining balance is applied toward the person's
MMF.
local authority
]
bills person (or parent) the MMF; or
local authority
] bills the person (or parent) the total amount
applied toward the MMF.
local authority will
]
send to
a person (or parent)
[
persons (and parents)
]
who
has
[
have
] been determined as having the
ability to pay monthly or quarterly statements that include:
local authority does
] not send
a statement
[
statements
] to
a person (or parent)
[
persons (or parents)
]
who
has
[
have
] an ability to pay if
the
person (or parent) maintains
[
they maintain
] a zero
balance (i.e., the person (or parent) does not currently owe any money).
local authority does
] not send
a statement
[
statements
] to
a person (or parent)
[
persons (or parents)
]
who
has
[
have
] an inability to pay.
Persons
(and parents) are responsible for
] promptly
pay
[
paying
] all charges owed to the
MRA
[
local authority
].
Local authorities
are responsible for making
] reasonable efforts to collect payments
from all available funding sources before accessing
DADS
[
TDMHMR
] funds to pay for
a person's
[
persons'
]
services.
local authority
] must determine whether a significant financial
change (as defined) has occurred. If a significant financial change
has occurred, then the
MRA
[
local authority
]
must immediately update the person's (or parent's) financial assessment
as required in
§2.106(a) of this subchapter
[
412.106(a)
of the title
] (relating to Determination of Ability to Pay).
local authority
] may arrange for
the person (or parent) to pay a lesser amount each month.
local authority
] must arrange for the person (or parent) to
pay a lesser amount each month only if the person has third-party
coverage that is neither income-based public insurance nor Medicare
and the person's cost-sharing exceeds
the person's
[
his/her
] MMF. The lesser amount:
persons (or parents)
] for services. If the
MRA
[
local
authority
] makes a decision,
which
[
based on
a clinical determination that
] is documented and includes input
from the person's team, that being charged for services and receiving
statements will result in a
significant
reduction in the
functioning [
level
] of the person or the person's (or parent's)
refusal or rejection of the needed services, then the
MRA must
stop
[
local authority will discontinue
] charging
the person (or parent) for services and stop sending statements. The
decision
[
clinical determination
] must be reassessed
at least
annually
[
every three months
]. If the
MRA
[
local authority
] decides to discontinue charging
the person (or parent) for services, then the
MRA
[
local
authority
] must develop and implement a plan to address the
issues related to the person's functioning
limitations
[
level
] or the person's (or parent's) refusal or rejection of the
needed services.
local authority will
]
address the past-due account of a person (or parent) who is not making
payments to ensure reasonable efforts to secure payments are initiated
with the person (or parent). For example, if the
MRA
[
local
authority
] determines that non-payment is related to financial
hardship, then the
MRA
[
local authority
] may
assist the person (or parent) in making arrangements to pay a lesser
amount each month in accordance with subsection (a)(2) of this section
or if the
MRA
[
local authority
] makes a decision,
which
[
based on a clinical determination that
] is
documented and includes input from the person's team, that non-payment
is related to the person's
functioning limitations
[
mental
illness or mental retardation
], then the person's
service
[
treatment/service
] plan may be modified to address the non-payment.
local authority
]
makes a decision,
which
[
based on a clinical determination
that
] is documented and includes input from the person's team,
that non-payment is not related to the person's
functioning limitations
[
mental illness or mental retardation
] and, despite
reasonable efforts to secure payment, the person (or parent) does
not pay, then the
MRA
[
local authority
] may
propose to involuntarily reduce or terminate the person's services.
The
MRA
[
local authority
] may not propose to
involuntarily reduce or terminate the person's services if
:
the proposed
action would cause the person's mental or physical health to be at
imminent risk of serious deterioration or the local authority
]
is identified as being responsible for providing court-ordered [
outpatient
] services to the person.
local authority
]
proposes to involuntarily reduce or terminate the person's services,
then the
MRA
[
local authority
] must:
clinical
] documentation that
the proposed action would not
result in a significant reduction
in the person's functioning or put at risk the person's health, safety,
or support system
[
cause the person's mental or physical
health to be at imminent risk of serious deterioration
]; and
local
authority will
] notify the person (or parent) in writing of
the proposed action (i.e., to involuntarily reduce or terminate the
person's services or refer the person to [
his/her
] third-party
coverage) and the right to appeal the proposed action in accordance
with
§2.46 of this chapter
[
§401.464 of
this title
] (relating to Notification and Appeals Process).
The notification
must
[
will
] describe the time
frames and process for requesting an appeal and include a copy of
this subchapter. If the person (or parent) requests an appeal within
the prescribed time frame, then the
MRA must
[
local
authority may
] not take the proposed action while the appeal
is pending. The
MRA
[
local authority
] may take
the proposed action if the person (or parent) does not request a review
within the prescribed time frame.
is conducted
] in accordance with
§2.46(g)
of this chapter
[
§401.464(g) of this title (relating
to Notification and Appeals Process)
]. The
MRA must notify
[
local authority will notify
] the person (or parent) in writing
of the appeal decision in accordance with
§2.46(h) of this
chapter
[
§401.464(h)
] and the right to have
the appeal decision reviewed by the Office of Consumer
Rights
and
Services
at DADS
[
and Rights Protection
- Ombudsman (1-800-252-8154) at TDMHMR Central Office
] if the
person (or parent) is dissatisfied with the appeal decision. The notification
must describe the time frames and process for requesting a review.
and Rights Protection - Ombudsman at TDMHMR Central
Office
]. A request for review must be submitted to the Office
of Consumer
Rights and
Services
, Department of Aging
and Disability Services, P.O. Box 149030, MC E-249, Austin, TX 78714-9030
[
and Rights Protection - Ombudsman, TDMHMR, P.O. Box 12668,
Austin, TX 78751
], within 10 working days
after
[
of
] receipt of the appeal decision. If the person (or parent)
requests a review within the prescribed time frame, then the
MRA
must
[
local authority may
] not take the proposed
action while the review is pending. The
MRA
[
local
authority
] may take the proposed action if the person (or parent)
does not request a review within the prescribed time frame and the
appeal decision upholds the decision to take the proposed action.
local authority
]
and make a decision based upon verbal testimony made during the telephone
conference and any documents provided by the person (or parent) and
the
MRA
[
local authority
]; or
local
authority
] without the presence of any of the parties involved.
will be
] conducted no
sooner than 10 working days and no later than 30 working days
after
[
of
] receipt of the request for review unless an extension is
granted by the director of the Office of Consumer
Rights and
Services
[
and Rights Protection - Ombudsman
];
will include
]
an examination of the pertinent information concerning the proposed
action and may include consultation with
DADS
[
TDMHMR
clinical staff and
] staff who are responsible for the policy
contained in this subchapter;
will result
] in
a final decision which will uphold, reverse, or modify the original
decision to take the proposed action; and
his/her
] third-party coverage.
will send
] written notification
of the final decision to the person (or parent) and the
MRA
[
local authority
].
local authority will
]
take appropriate action consistent with the final decision.
local authority may
] not impose financial penalties
on a person (or parent).
Local
authorities
] must make reasonable efforts to collect debts before
an account is referred to a debt collection agency.
The MRA must
document its
[
Local authorities must document their
]
efforts at debt collection.
Local authorities
]
must incorporate into a written agreement or contract for debt collection
provisions that state that both parties
must
[
shall
]:
persons and their families
].
Local authorities
will
] enforce the provisions contained in paragraph (1) of this
subsection.
referenced as Exhibit A
in §412.113 of this title (relating to Exhibit)
], is based
on 150% of the Federal Poverty Guidelines.
DADS
[
TDMHMR
]
may revise the Monthly Ability-To-Pay Fee Schedule, based on any changes
in the Federal Poverty Guidelines.
In accordance with a prescribed training program developed
by TDMHMR, all local authority
]
MRA
staff who are
involved in implementing or explaining the content of this subchapter
must
receive initial training and
demonstrate competency
prior to performing tasks related to charging for community services
[
and annually thereafter
].
Such staff must demonstrate
competency annually thereafter.
Persons (and Parents) ].
TDMHMR
will develop
] a brochure that contains the policies for charging
for community services that are contained in this subchapter, including:
The local authority
]
must provide
a person (or parent)
[
persons (and parents)
]
a copy of the brochure prior to
the person's
[
their
]
entry into services, except in a crisis.
Chapter 97.
LICENSING STANDARDS FOR HOME AND COMMUNITY SUPPORT SERVICES AGENCIES
submit
the form for requesting the IRoD (included in the official written
notification of the survey findings), a rebuttal letter, and supporting
documentation to DADS.
]
The
original request form
] must be postmarked
or faxed
within
10 days after the date of receipt of the official written notification
of the survey findings
;
[
and be received at the DADS
address listed on the form within 10 days after the date of the postmark.
]
A
copy of the completed request for IRoD form
] and supporting
documentation
to the address or fax number listed on the IRoD
request form and ensure receipt by the DADS Survey and Certification
Enforcement Unit within seven days after the postmark or fax date
of the IRoD request form; and
[
must also be sent to the
designated survey office.
]
(3)
] An agency waives its
right to an IRoD if the agency fails to submit the required information
to the DADS Survey and Certification Enforcement Unit
within
the required time
frames.
[
frame. The agency may not
submit additional information after the 10 days allowed, unless DADS'
review staff request additional information for clarification.
]
Part 20.
TEXAS WORKFORCE COMMISSION
(2)
] Level One Sanction
Status--A sanction status assigned by the Agency to a Board or other
subrecipient of the Agency for significant inability or failure to
perform as required by the Agency, including performing or failing
to perform due to a sanctionable act as described in this subchapter.
A Level One Sanction Status may be associated with the assessment
of one or more penalties as referenced in this subchapter.
(3)
] Level Two Sanction
Status--A higher sanction status than Level One assigned by the Agency
to a Board or other subrecipient of the Agency for severe inability
or failure to perform as required by the Agency, including performing
or failing to perform due to a sanctionable act as described in this
subchapter. A Level Two sanction may be associated with the assessment
of more severe penalties than those assessed to a Board or subrecipient
of the Agency in Level One Sanction Status.
(4)
] Level Three Sanction
Status--The highest sanction status assigned by the Agency to a Board
or other subrecipient of the Agency for extreme inability or failure
to perform as required by the Agency, including performing or failing
to perform due to a sanctionable act as described in this subchapter.
A
Level Three Sanction
[
level three sanction
]
may be associated with the assessment of the most severe penalties
being assessed against the Board or subrecipient of the Agency.
Notice of
]
Sanction Determination [
(Sanction Determination)
] shall
be
filed
[
submitted
] within
10
[
ten
] working days following the receipt of the Sanction Determination.
The appeal
shall
[
must
] be
in writing and
filed with
[
submitted to
] the General Counsel, Texas
Workforce Commission, 101 East 15th Street, Room 614, Austin, Texas
78778.
a
] hearing officer
for a hearing
.
[
The hearing officer shall receive oral and written evidence,
as deemed appropriate by the hearing officer, from both parties and
prepare a written proposal for decision to be submitted to the Agency's
Executive Director for final decision.
]
(d)
The decision of the
Agency's Executive Director shall be final.]
§800.192.Hearing Procedures.
Chapter 807.
CAREER SCHOOLS AND COLLEGES
Chapter 809.
CHILD CARE SERVICES
Subchapter G of this chapter (relating to Appeal Procedure)
]
if the parent's eligibility or child's enrollment is denied, delayed,
reduced, or terminated by the Board's child care contractor.
them
] during this process.
Subchapter
G of this chapter
], but shall follow the procedures established
by DFPS.
not
] appeal pursuant to
Chapter 823
of this title.
[
Subchapter G of this chapter, but may appeal
following the procedures in Chapter 811 of this title.
]
not
] appeal pursuant to
Chapter 823
of this title.
[
Subchapter G of this chapter, but may appeal
following the procedures in Chapter 813 of this title.
]
Subchapter G. APPEAL PROCEDURES
Chapter 811.
CHOICES
Chapter 813.
FOOD STAMP EMPLOYMENT AND TRAINING
Chapter 823.
GENERAL HEARINGS
Subchapter B. PRE-HEARING PROCEDURE
Subchapter C. CONDUCT OF HEARING
Subchapter D. DECISIONS, NON-APPEARANCES, AND REHEARINGS
Chapter 823.
INTEGRATED COMPLAINTS, HEARINGS, AND APPEALS
Subchapter B. BOARD COMPLAINT AND APPEAL PROCEDURES
Subchapter C. AGENCY COMPLAINT AND APPEAL PROCEDURES
Subchapter D. AGENCY-LEVEL DECISIONS, REOPENINGS, AND REHEARINGS
Chapter 841.
WORKFORCE INVESTMENT ACT
Subchapter D. LOCAL AREA GRIEVANCE PROCEDURE
Subchapter E. STATE LEVEL HEARING