Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 7.
DADS ADMINISTRATIVE RESPONSIBILITIES
Subchapter G. COMMUNITY RELATIONS
40 TAC §§7.301 - 7.311, 7.313 - 7.316
The Health and Human Services Commission (HHSC), on behalf
of the Department of Aging and Disability Services (DADS), adopts the repeal
of §§7.301 - 7.311 and §§7.313 - 7.316 in Chapter 7, governing
DADS Administrative Responsibilities, without changes to the proposal as published
in the December 22, 2006, issue of the
Texas Register
(31 TexReg 10252).
The repeal is adopted to facilitate the consolidation of the rules governing
volunteer programs associated with, and donations to, DADS in one place in
the Texas Administrative Code. HHSC, on behalf of DADS, is adopting a related
repeal and new rules in Chapter 61 elsewhere in this issue of the
Texas Register
.
The adopted repeal eliminates obsolete rules governing volunteer programs
of the former Texas Department of Mental Health and Mental Retardation. These
rules were transferred to DADS' rule base upon the consolidation of health
and human services agencies in September 2004.
DADS received no comments regarding adoption of the repeal.
The repeal is adopted 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; and 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 23, 2007.
TRD-200700700
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: March 15, 2007
Proposal publication date: December 22, 2006
For further information, please call: (512) 438-4162
The Health and Human Services Commission (HHSC), on behalf of the
Department of Aging and Disability Services (DADS), adopts the repeal of §§61.1
- 61.16 and simultaneously adopts new §§61.101 - 61.107 in Chapter
61, governing Volunteer and Community Engagement, without changes to the proposed
text published in the December 22, 2006, issue of the
Texas Register
(31 TexReg 10264).
The new sections and repeal are adopted to consolidate rules governing
volunteer programs associated with, and donations to, DADS in one place in
the Texas Administrative Code. The new sections are adopted to reflect new
procedures and organizational structures resulting from the consolidation
of health and human services agencies in compliance with Acts 2003, 78th Legislature,
Regular Session, Chapter 198 (House Bill 2292). The new sections are also
adopted to comply with Texas Government Code, Chapter 2255, concerning the
relationship of a state agency to a private donor or a private organization
and with Texas Government Code, Chapter 2109, which governs volunteer programs
in a state agency. The adopted repeal eliminates obsolete rules of the former
Texas Department of Human Services that became part of the DADS rule base
in September 2004.
DADS received no comments regarding adoption of the new sections or the
repeal.
40 TAC §§61.1 - 61.16
The repeal is adopted 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 and 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.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 23, 2007.
TRD-200700701
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: March 15, 2007
Proposal publication date: December 22, 2006
For further information, please call: (512) 438-4162
40 TAC §§61.101 - 61.107
The new sections are adopted 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; Texas Government Code, §2109.003, which requires each state
agency to develop a volunteer program; and Texas Government Code, §2255.001,
which requires a state agency that is authorized by statute to accept money
from a private donor, or for which a private organization exists that is designed
to further the purposes and duties of the agency, to adopt rules governing
the relationship between the donor or organization, and between the agency
and its employees.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on February 23, 2007.
TRD-200700702
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: March 15, 2007
Proposal publication date: December 22, 2006
For further information, please call: (512) 438-4162
Chapter 376.
REGISTRATION OF FACILITIES
40 TAC §376.1
The Texas Board of Occupational Therapy Examiners adopts
amendments to §376.1, Definitions, without changes to the proposed text
as published in the December 22, 2006, issue of
Texas Register
(31 TexReg 10294) and will not be republished.
The sections were amended to add a new definition for linked facilities.
No comments were received regarding adoption of the amendment.
The amendment is adopted under the Occupational Therapy Practice
Act, Title 3, Subchapter H, Chapter 456, Occupations Code, which provides
the Texas Board of Occupational Therapy Examiners with the authority to adopt
rules consistent with this Act to carry out its duties in administering this
Act.
Title 3, Subchapter H, Chapter 454 of the Occupations Code is affected
by this amended section.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 20, 2007.
TRD-200700660
John Maline
Executive Director
Texas Board of Occupational Therapy Examiners
Effective date: March 12, 2007
Proposal publication date: December 22, 2006
For further information, please call: (512) 305-6900
Chapter 821.
TEXAS PAYDAY RULES
The Texas Workforce Commission (Commission) adopts amendments,
Subchapter A. General Provisions, §821.5
Subchapter C. Wage Claims, §821.42
The Commission adopts the following new section,
without
changes, of Chapter 821 relating to Texas Payday Rules, as
published in the December 26, 2006, issue of the
Texas Register
(31 TexReg 10747):
Subchapter C. Wage Claims, §821.47
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The purpose of the adopted Chapter 821 rule change is:
--to reflect recent revisions to Agency Form C-8 referenced in §821.5;
and
--to authorize the Commission to allow wage claims to be amended for the
purposes of efficiency, expediency, and fairness to all parties.
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 A. GENERAL PROVISIONS
The Commission adopts the following amendment to Subchapter A:
§821.5. Employment Status: Employee or Independent Contractor.
Section 821.5 adopts Agency Form C-8 as the Agency's official guideline
for use in determining employment status. The introductory paragraphs of Form
C-8 incorporate a broader explanation of the applicability of the factors
used to determine employee or independent contractor status, and specifically
note that not all factors listed apply to each and every case.
SUBCHAPTER C. WAGE CLAIMS
The Commission adopts the following amendments to Subchapter C:
§821.42. Timeliness.
Section 821.42(b) is removed in order to allow the Commission, at its discretion,
to consider comprehensive wage claims from the investigatory phase through
the wage claim hearing. Some wage claims may have to be dismissed as being
premature simply because no wages have become due at the time the preliminary
wage determination order or hearing decision is issued. In such cases, the
claimant would still have the opportunity to refile the wage claim when the
wages become due.
§821.47. Amendment of Wage Claims.
New §821.47(a) and (b) provide authority for the Commission, at its
discretion, to allow a wage claim to be amended for expediency or to prevent
injustice. The new rule affords wage claimants the opportunity to add wages
that become due subsequent to the filing of the wage claim or to amend the
amount of wages at issue, subject to the discretion of the investigator or
hearing officer handling the case. New §821.47 will not affect the requirement
in Texas Labor Code §61.051(c) that a wage claim be filed no later than
the 180th day after the date the wages claimed become due for payment.
An individual who originally files a claim for wages may realize that he
or she did not request the full amount of wages allegedly owed; may have wages
that continue to become due after the filing date of the wage claim; or simply
may have filed the claim a few days before the wages actually became due under
the Texas Payday Law. Under current rules, the claimant may not amend the
original claim, but instead must file another, separate wage claim for the
additional amount. The result is inefficient and burdensome multiple claims,
excessive paperwork for all parties, and redundant investigations and hearings.
Under new §821.47, the Commission has the discretion to allow a claimant
to amend the amount of wages originally claimed in order to add wages that
have become due. For example, a claimant files a wage claim contending commissions
of $200 are due but unpaid by the employer. Subsequent to filing the wage
claim, the claimant believes more commissions in the amount of $75 have become
due. Under the current rule, the claimant would be required to file an additional,
separate wage claim for $75, which may result in another investigation and
hearing, separate and apart from the hearing for the original $200 claim.
This subsequent investigation and hearing may have been avoided had the claimant
been able to add the claim for the $75 prior to the first hearing on the original
$200 claim. The new rule results in efficiency and cost savings and reduces
the necessity for more hearings, which could likely result if the claimant
is obliged to file a separate wage claim for the additional sums owed.
Amending wage claims may raise procedural due process issues, hence the
amendments will be subject to the discretion of the Commission. Several factors
will affect the Commission's decision on whether to allow the amendment of
a wage claim.
One factor is the status of the wage claim. Amending a wage claim that
is still in the investigation phase is relatively simple and raises few due
process concerns because the Commission has yet to issue a preliminary wage
determination order. However, allowing an amendment after the hearing has
been held and a decision issued would raise serious due process issues, and
would be unlikely to be allowed by the Commission.
Amending a wage claim after the issuance of the preliminary wage determination
order, but prior to a hearing, is possible but may require additional procedures
to ensure proper notice is given. The hearing officer may:
--proceed with the hearing and include the amended wages with the original
claim;
--return the claim for further investigation of the issues; or
--continue the hearing to afford the employer opportunity to conduct a
proper defense, gather appropriate records, etc.
Other factors affecting the Commission's disposition of an amendment include
whether the amendment is:
--an extension of the same issues in the original claim--e.g., the original
claim alleges $200 in hourly wages owed but the amended claim alleges $300
in hourly wages owed for an additional week;
--a new allegation of a different type of payment owed--e.g., the original
claim alleges $200 in hourly wages owed and the amended claim alleges $200
in vacation/commissions/bonuses also owed; or
--a significant change in the amount of the original claim--e.g., the original
claim alleges $200 in salary owed and the amended claim alleges $5,000 in
salary owed.
Proper notice and possibly investigation for new or significantly changed
issues still will be required. Although at or prior to the hearing, a claimant
may amend the claim regarding the amount allegedly owed, a claimant may not
discuss new issues without both parties being afforded proper notice. Should
the claimant introduce a new issue at the hearing, the hearing officer retains
the discretion to instruct the claimant to file a new, separate wage claim
for those wages or to continue the hearing and provide both parties adequate
notice of the issues to be discussed.
Example 1: A hearing is set to adjudicate a wage claim of $200 by the claimant
from the employer. At the hearing, the claimant argues that vacation pay of
$500 also is due from the employer, an issue the claimant previously failed
to raise. Unless the employer is ready and willing to proceed with the vacation
pay issue at that time, the hearing officer must advise the claimant to file
a new wage claim for the vacation pay so it can be properly investigated.
Example 2: A hearing is set to adjudicate a wage claim involving $800 for
two weeks' salary. At the hearing, the claimant asserts that since the filing
of the wage claim, an additional week is unpaid in the amount of $400 and
has become due. The hearing officer must allow the amendment of the wage claim.
If the employer is not prepared to discuss the additional week now claimed,
the hearing officer must schedule a continuance of the hearing to provide
the employer an opportunity to prepare.
Under Texas Labor Code §61.058, hearings conducted under the Texas
Payday Law are conducted under the rules and hearings procedures contained
in Chapter 815 of this title, which ensure that procedural due process rights
are preserved and that a fair hearing is conducted. New §821.47(b) clarifies
that the same rules and hearings procedures will govern the wage claim amendment
process.
No comments were received.
The Agency hereby certifies that the rules have been reviewed by legal
counsel and found to be within the Agency's legal authority to adopt.
Subchapter A. GENERAL PROVISIONS
Chapter 61.
COMMUNITY SERVICES--VOLUNTEER SERVICES
Chapter 61.
VOLUNTEER AND COMMUNITY ENGAGEMENT
Part 12.
TEXAS BOARD OF OCCUPATIONAL THERAPY EXAMINERS
Part 20.
TEXAS WORKFORCE COMMISSION