PART 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES
CHAPTER 101. ADMINISTRATIVE RULES AND PROCEDURES
The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Assistive and Rehabilitative Services (DARS), adopts amendments and a repeal to the DARS rules in Title 40, Part 2, Chapter 101, Administrative Rules and Procedures, Subchapters A, B, C, D, F, and I.
Specifically, DARS is adopting amendments to Subchapter A, General Rules, §101.101, Definitions; Subchapter B, Purchase of Goods and Services, §101.201, Purchase for Individual Consumers, and §101.203, Standards for Facilities and Providers of Services; Subchapter C, Historically Underutilized Businesses, §101.551, Purpose, §101.553, Applicability, §101.555, Definitions, and §101.557, Adoption of Rules; Subchapter D, Councils and Committees, §101.601, Rehabilitation Council of Texas, §101.603, State Independent Living Council, and §101.605, Early Childhood Intervention Advisory Committee. DARS adopts the amendments to Subchapter F that rename the subchapter "General Rules," remove the Division 2 designation and division title, but leave the Subchapter F rules unchanged. Additionally, DARS is adopting the repeal of Subchapter I, Administrative Rules and Procedures Pertaining to Early Childhood Intervention Services, Division 2, Agency Administration, §101.5641, Employee Training and Education. Sections 101.101, 101.201, 101.203, 101.551, 101.555, 101.557, 101.601, 101.603, 101.605 and 101.5641 are adopted without changes to the proposal as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4825) and will not be republished. Editorial changes were made to clarify the citations in §101.553, so this section is adopted with changes to the proposed text as published in the June 20, 2008, issue of the Texas Register . The text of the rule will be republished.
The amendments and repeal are adopted pursuant to the DARS four-year rule review of Chapter 101 as required by Texas Government Code, §2001.039. In accordance with Texas Government Code §2001.039, DARS conducted its four-year review of Chapter 101. As a result of the review, DARS determined that the reasons for initially adopting these rules continue to exist. However, the review identified areas where amendments and repeal were needed to update and/or clarify legal references and citations, remove obsolete language, and provide further clarification of rules provisions. Notice of the proposed rules review of Chapter 101 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863). Elsewhere in this issue of the Texas Register , DARS contemporaneously adopts the rule review of Chapter 101. Note that Subchapter E, Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs, of Chapter 101, was also included in the notice of intent to review Chapter 101. As a result of the rules review of Subchapter E, HHSC has proposed to repeal and replace Subchapter E with new Subchapter J which is being adopted contemporaneously elsewhere in this issue of the Texas Register.
The following statutes and regulations authorize the adopted amendments and repeal: The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq.; the regulations of the Department of Education, Rehabilitation Services Administration, 34 C.F.R. Parts 361, 363, 364, 365, 366, and 367, as amended; Texas Human Resources Code, Chapters 73, 81, 82, 91, 111, 116, and 117; Texas Health and Safety Code, Chapter 432; the Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and implementing regulations; 29 U.S.C. §§725 and 796d; 42 U.S.C. §§300x-3(a), 300x-4(e), and 15025; 34 C.F.R. Part 303, Subpart G; and Texas Government Code, Chapters 411, 551, 552, 559, 2001, 2155, and 2161.
No comments were received regarding adoption of the rules.
SUBCHAPTER A. GENERAL RULES
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804172
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804173
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.551, 101.553, 101.555, 101.557
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§101.553.Applicability.
This subchapter applies to all contracts and purchase orders established under the requirements of Government Code, Chapter 2155. It also applies to all bids, proposals, offers, or other applicable expressions of interest over $100,000 as defined in Government Code, Chapter 2161, Subchapter F (relating to Subcontracting), and 34 TAC §20.14 (relating to Subcontracts).
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 August 8, 2008.
TRD-200804174
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.601, 101.603, 101.605
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804175
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
DIVISION 2. AGENCY ADMINISTRATION
The repeal is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804176
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Assistive and Rehabilitative Services (DARS), adopts the amendments to DARS rules in Title 40, Part 2, Chapter 101, Subchapter E, Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs, by repealing the subchapter and replacing with new Subchapter J, Appeals and Hearing Procedures. The following divisions and sections in Title 40, Chapter 101, Subchapter E, are repealed: Chapter 101, Subchapter E, Division 1, §101.811 and §101.821; Division 2, §§101.851, 101.853, 101.855, 101.857, 101.859, 101.861, 101.863, 101.865, 101.867, 101.869, 101.871, 101.873, 101.875, 101.877, 101.879, 101.881, and 101.883 and Division 3, §§101.901, 101.903, 101.905, 101.907, 101.909, and 101.911. The following new rules are adopted: Division 1, General Rules, §§101.7001, 101.7003, 101.7005, 101.7007, 101.7009, 101.7011, 101.7013, 101.7015, 101.7017, 101.7019, 101.7021, 101.7023, 101.7025, 101.7027, 101.7029, 101.7031, 101.7033, 101.7035, 101.7037, 101.7039, 101.7041, 101.7043, 101.7045, 101.7047, and 101.7049; Division 2, Division for Blind Services and Division for Rehabilitation Services, §§101.7051, 101.7053, 101.7055, 101.7057, 101.7059, 101.7061, 101.7063, 101.7065, 101.7067, 101.7069, 101.7071 and 101.7073; Division 3, Division for Early Childhood Intervention Services, §§101.8011, 101.8013 and 101.8015; and Division 4, Office for Deaf and Hard of Hearing Services, §§101.8051, 101.8053, 101.8055, 101.8057, 101.8059, 101.8061, 101.8063, 101.8065, 101.8067, 101.8069, 101.8071, 101.8073, 101.8075, 101.8077, and 101.8079. Sections 101.811, 101.821, 101.851, 101.853, 101.855, 101.857, 101.859, 101.861, 101.863, 101.865, 101.867, 101.869, 101.871, 101.873, 101.875, 101.877, 101.879, 101.881, 101.883, 101.901, 101.903, 101.905, 101.907, 101.909, 101.911, 101.7001, 101.7003, 101.7009, 101.7011, 101.7013, 101.7015, 101.7017, 101.7019, 101.7021, 101.7023, 101.7025, 101.7027, 101.7029, 101.7031, 101.7033, 101.7035, 101.7039, 101.7041, 101.7045, 101.7049, 101.7051, 101.7055, 101.7057, 101.7059, 101.7065, 101.7067, 101.7071, 101.7073, 101.8013, 101.8015, 101.8051, 101.8053, 101.8055, 101.8057, 101.8063, 101.8065, 101.8071, 101.8073, 101.8077 and 101.8079 are adopted without changes to the proposal as published in the June 27, 2008, issue of the Texas Register (33 TexReg 4968) and will not be republished. Minor grammatical/editorial changes were made to §§101.7005, 101.7007, 101.7037, 101.7043, 101.7047, 101.7053, 101.7061, 101.7063, 101.7069, 101.8011, 101.8059, 101.8061, 101.8067, 101.8069 and 101.8075; therefore, these sections are adopted with changes to the proposed text as published in the June 27, 2008, issue of the Texas Register. The text of the rules will be republished.
The adoption consolidates all DARS administrative hearing rules under Chapter 101, new Subchapter J, in compliance with HB 2292, 78th Legislature, Regular Session. New Subchapter J, Appeals and Hearing Procedures, is extensively restructured and expanded from three divisions to four divisions in order to add appeals and hearing procedures specific to the Division for Early Childhood Intervention Services and the Office for Deaf and Hard of Hearing Services. In accordance with the requirements of Texas Government Code §2001.039, DARS has conducted a four-year review of Title 40, Chapter 101, Subchapter E, of the DARS rules. Notice of the proposed rule review of Title 40, Part 2, Chapter 101, including Subchapter E, was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863). DARS determined that the reasons for initially adopting these rules continue to exist. However, the rule review identified the need to repeal and replace Subchapter E with an extensively restructured and expanded new Subchapter J for the reasons detailed above.
Elsewhere in this issue of the Texas Register , DARS contemporaneously adopts the rule review of Chapter 101.
The following sections in Title 40, Chapter 108 and 109, were published for repeal in the June 20, 2008, issue of the Texas Register (33 TexReg 4849):
Chapter 108, Subchapter B, §108.63. The content of this section as amended is transferred to Chapter 101, Subchapter J, Division 3, as new §101.8011.
Chapter 109, Subchapter B, §§109.241, 109.243, and 109.245. The content of these sections as amended are transferred to Chapter 101, Subchapter J, Division 4, as new §§101.8057, 101.8059, and 101.8061.
The following statutes and regulations authorize the adopted rule changes: The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq.; the regulations of the Department of Education, Rehabilitation Services Administration, 34 C.F.R. Parts 361, 363, 364, 365, 366, and 367, as amended; Texas Human Resources Code, Chapters 81, 82, 91, and 111; Texas Occupations Code, Chapter 53; The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and implementing regulations; 34 C.F.R. Part 303, as amended; and the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001, as amended.
No comments were received regarding adoption of the rules.
SUBCHAPTER E. APPEALS AND HEARING PROCEDURES FOR VOCATIONAL REHABILITATION AND INDEPENDENT LIVING PROGRAMS
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804177
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 27, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.851, 101.853, 101.855, 101.857, 101.859, 101.861, 101.863, 101.865, 101.867, 101.869, 101.871, 101.873, 101.875, 101.877, 101.879, 101.881, 101.883
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804178
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 27, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.901, 101.903, 101.905, 101.907, 101.909, 101.911
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804179
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 27, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.7001, 101.7003, 101.7005, 101.7007, 101.7009, 101.7011, 101.7013, 101.7015, 101.7017, 101.7019, 101.7021, 101.7023, 101.7025, 101.7027, 101.7029, 101.7031, 101.7033, 101.7035, 101.7037, 101.7039, 101.7041, 101.7043, 101.7045, 101.7047, 101.7049
The new rules are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§101.7005.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. The use of the singular or plural case is not meant to be limiting unless the context clearly indicates otherwise.
(1) Act--The Rehabilitation Act of 1973 as amended, 29 U.S.C. §701, et seq.
(2) Appellant--An applicant, eligible individual, authorized representative, or parent who has initiated formal procedures under this subchapter.
(3) Applicant--A person who has applied for services but for whom an eligibility determination has not been made.
(4) Authorized representative--An attorney authorized to practice law in the State of Texas, or a person designated by a party to represent the party in hearing procedures. The term includes a parent or a person made legally responsible for the child by a court of competent jurisdiction.
(5) Commissioner--The chief executive officer of the Department of Assistive and Rehabilitative Services.
(6) Consumer--The term "consumer" refers to and includes a person who:
(A) under Division 2 of this subchapter, has been determined eligible for and is receiving services from the Department;
(B) under Division 3 of this subchapter, is a parent, child or the child's family; or
(C) under Division 4 of this subchapter, not only has been determined eligible for and receiving services from the Department, but is also an individual defined by §101.8055(d) of this subchapter (relating to Definitions).
(7) Department--The Department of Assistive and Rehabilitative Services (also referred to as "DARS"), its officers, employees, and agents.
(8) Discovery--The process by which a party, prior to any final hearing on the merits, may obtain evidence and other information which is relevant to a claim or defense in the appeal.
(9) Eligible individual--Any individual person determined by the Department to be eligible to receive vocational rehabilitation services.
(10) Hearing--A formal review conducted under this chapter. This term includes pre-hearing conferences.
(11) Impartial hearing officer (IHO)--A person who is appointed to conduct a hearing under this chapter.
(12) Parent--
(A) Under Division 2 of this subchapter, the term "parent" whether in the singular or plural shall mean a minor child's natural or adoptive parent, the spouse of the minor child's natural or adoptive parent, or the minor child's surrogate or foster parent, or the spouse of the surrogate or foster parent, or other person made legally responsible for the minor child by a court of competent jurisdiction.
(B) Under Division 3 of this subchapter, the meaning of term "parent" shall be the same as that in 34 C.F.R. §303.19.
(13) Party--A person or agency named or admitted to participate in a formal hearing.
(14) Person--Any individual, representative, corporation, or other entity, including any public or nonprofit corporation, or agency or instrumentality of federal, state, or local government.
(15) Record--The official record of a hearing, including all arguments, briefs, pleadings, motions, intermediate rulings, orders, evidence received or considered, statements of matters officially noticed, questions and offers of proof, objections and rulings on objections, proposed findings of fact, conclusions of law, hearing officer decision, any other decision, opinion, or report by the hearing officer or commissioner, and all Department memoranda or data, including consumer and applicant files, submitted to or considered by the impartial hearing officer.
§101.7007.Filing a Request for Review.
(a) Persons who may file a Request for Review.
(1) Under Division 2 of this subchapter, an applicant or eligible individual who is dissatisfied with a determination made by the staff of the Department that affects the provision of vocational rehabilitation services may request a review of the determination.
(2) Under Division 3 of this subchapter, a parent may initiate a hearing involving the identification, evaluation, or placement of or the provision of appropriate early intervention services to a child or child's family.
(3) Under Division 4 of this subchapter, a certificate holder.
(b) A request for a review brought:
(1) under Division 2 of this subchapter, shall be filed, as provided in §101.7059 of this subchapter (relating to Filings) with the Hearings Coordinator, DARS Legal Services;
(2) under Division 3 of this subchapter, shall be filed, as provided in §101.8011 of this subchapter (relating to Administrative Hearings Concerning Individual Child Rights) with the assistant commissioner for ECI or, with the Hearings Coordinator, DARS Legal Services, if that assistant commissioner so delegates; and
(3) under Division 4 of this subchapter, shall be filed as provided in §101.8063 and §101.8065 of this subchapter (relating to Filing a Request for Hearing and Filings).
§101.7037.Prepared Testimony.
In all proceedings and after service of copies upon all parties of record at such time as may be designated by the impartial hearing officer, the prepared testimony of a witness upon direct examination, either in narrative or question and answer form, may be incorporated in the record as if read or received as an exhibit, upon the witness being sworn and identifying the same. Such witness shall be subject to cross-examination and the prepared testimony shall be subject to a motion to strike in whole or in part.
§101.7043.Motion for Reconsideration.
(a) Any party to a hearing may file a motion for reconsideration within 20 days after the party is notified of the issuance of the decision of the impartial hearing officer. The motion shall be filed as follows:
(1) for hearings held under Divisions 2 and 4 of this subchapter with the Hearings Coordinator, DARS Legal Services, and
(2) for hearings held under Division 3 of this subchapter with the assistant commissioner for ECI, or with the Hearings Coordinator, DARS Legal Services, if the assistant commissioner so designates.
(b) The motion for reconsideration must specify the matters in the decision of the impartial hearing officer which the party considers to be erroneous. Any response to the motion for reconsideration must be filed no later than thirty days after a party, or a party's attorney or representative, is notified of the issuance of the decision of the impartial hearing officer.
(c) The impartial hearing officer shall rule on the motion for reconsideration no later than 15 days after receipt of the motion, or after receipt of the response to the motion for reconsideration, whichever comes later. If the motion is granted, the IHO shall issue a decision upon reconsideration within an additional 15 days. If the impartial hearing officer fails to rule on the motion for reconsideration within 15 days, the motion is denied as a matter of law.
(d) Service. Service of the impartial hearing officer's decision or of a motion or response under this section shall be made by any of the following means to a party, a party's attorney, or representative:
(1) hand-delivery;
(2) courier-receipted delivery;
(3) regular first-class mail, certified, or registered mail;
(4) email or facsimile transmission before 5:00 p.m. on a business day to the recipient's current email address or telecopier number; or
(5) such other means as the impartial hearing officer may direct.
(e) Date of service. The date of service is the date of hand-delivery, of delivery by courier, of mailing, of emailing, or of facsimile transmission, unless otherwise required by law. Unless the contrary is shown, a decision, motion, or response that is sent by regular first-class mail shall be presumed to have been received within three (3) days of the date of post-marking, if enclosed in a wrapper addressed to the recipient's last known address with return address to the sender, stamped with the appropriate first-class postage, and deposited on the date post-marked with the U.S. Postal Service.
§101.7047.Mediation Procedures.
(a) An applicant, eligible individual, or parent who has initiated a proceeding under this subchapter may request mediation to resolve the dispute. The Department, with the consent of the applicant, eligible individual, or parent, may also originate the request for mediation.
(b) Mediation shall be voluntary on the part of the parties; must not be used to deny or delay the right of an individual to a hearing under this subchapter, or to deny any other right afforded by the Rehabilitation Act; and shall be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(c) The Department shall bear all costs related to the mediation process.
(d) Upon receiving a request for mediation from the parties, the Hearings Coordinator shall select an individual from a list of qualified mediators who are knowledgeable in laws and regulations relating to the provision of vocational rehabilitation, independent living services, comprehensive rehabilitation services, or the provision of services by Early Childhood Intervention Services, whichever may be applicable to the dispute.
(e) Sessions in the mediation process shall be coordinated by the mediator in a timely manner at a location convenient to both parties in the dispute.
(f) All discussions that occur during the mediation sessions are confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The mediator may require the parties to sign a confidentiality pledge prior to the commencement of the mediation process.
(g) Any agreement reached through the mediation process shall be documented in a written mediation agreement and signed by the parties to the dispute. The agreement then becomes a part of the consumer record.
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 August 8, 2008.
TRD-200804180
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 27, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.7051, 101.7053, 101.7055, 101.7057, 101.7059, 101.7061, 101.7063, 101.7065, 101.7067, 101.7069, 101.7071, 101.7073
The new rules are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§101.7053.Legal Authority and Scope.
(a) The following statutes and regulations authorize the procedures established by the chapter:
(1) The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq. and regulations of the Department of Education, Rehabilitation Services Administration, 34 C.F.R. §361.57 et seq., as amended;
(2) Texas Human Resources Code Chapter 91 (concerning vocational rehabilitation services for the blind and visually-impaired);
(3) Texas Human Resources Code Chapter 111 (concerning vocational rehabilitation services for the disabled); and
(4) Texas Administrative Procedure Act, Texas Government Code, Chapter 2001, as amended.
(b) The procedures in this Division 2 of this subchapter, apply to those determinations that concern the denial, reduction, suspension or termination of vocational rehabilitation services, independent living or comprehensive rehabilitation services by the Department and are available to any applicant or consumer who is dissatisfied with a determination made by staff of the Department.
(c) Ineligibility. The following may challenge a determination of ineligibility through the procedures of this Division 2:
(1) applicants who are found ineligible for vocational rehabilitation services; and
(2) previously eligible individuals who have been determined no longer eligible for vocational rehabilitation services under 34 C.F.R. §361.43.
(d) Unless a decision concerns the denial, reduction, suspension or termination of services, or concerns the nature or content of a consumer's Individualized Plan for Employment, or the delivery or quality of vocational counseling services or other services provided by DARS, decisions made in the course of providing services by the Department's staff are not determinations subject to review by appeal under the procedures of this subchapter.
(e) A person's decision to seek an informal resolution to matters about which the person is dissatisfied shall not prevent, compromise, or delay the person's access to formal resolution procedures in this Division 2.
(f) The Department shall not institute a suspension, reduction, or termination of vocational rehabilitation services being provided to an applicant or eligible individual, including evaluation and assessment services and the development of an Individualized Plan for Employment, pending a resolution of an applicant or eligible individual's appeal by mediation or hearing unless:
(1) the applicant or eligible individual requests a suspension, reduction or termination of services; or
(2) the Department has evidence that the applicant or eligible individual obtained the services through misrepresentation, fraud, collusion, or criminal conduct.
§101.7061.Discovery and Mandatory Disclosures.
(a) Written Discovery. Requests for disclosure of information shall be the only form of written discovery which the parties shall be entitled to make. Unless a party is ordered by the IHO during a pre-trial conference to disclose other information in addition to the items in this section, a party may request in writing that the other party disclose or produce the following:
(1) the names, addresses and phone numbers of persons having knowledge of relevant facts, including those who might be called as witnesses and any expert who might be called to testify;
(2) for any testifying expert:
(A) the subject matter on which the expert will testify;
(B) the expert's resume; and
(C) a brief summary of the substance of the expert's mental impressions and opinions and the basis for them; and all documents and tangible things reflecting such information;
(3) the issues and in general the factual basis for a party's claims and defenses in the appeal; and
(4) information concerning appellant's employment, including the appellant's job application with the appellant's current employer and any personnel evaluations.
(b) Subject to the provisions in this section, parties may obtain discovery regarding any matter which is relevant to a claim or defense in the appeal.
(c) All discovery requests should be directed to the party from which discovery is being sought.
(d) All disputes with respect to any discovery matter shall be filed with and resolved by the impartial hearing officer.
(e) All parties shall be afforded a reasonable opportunity to file objections and motions to compel with the impartial hearing officer regarding any and all discovery requests.
(f) Copies of discovery requests and documents filed in response thereto shall be filed on all parties, but should not be filed with the impartial hearing officer or the Hearings Coordinator unless directed to do so by the impartial hearing officer or when in support of objections, motions to compel, motions for protective order, or motions to quash.
(g) Any documents contained in any file of the Department related to the appellant are to be deemed admissible. The Department must, without awaiting either an order or a discovery request under subsection (a) of this section, provide to the appellant a complete copy of the appellant's record of services, as described in 34 C.F.R. §361.47, including any electronically-stored or preserved records.
§101.7063.Documentary Evidence and Official Notice.
(a) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. On request, parties shall be given an opportunity to compare the original and the copy or excerpt.
(b) When numerous similar documents which are otherwise admissible are offered into evidence, the impartial hearing officer may limit the documents received to those which are typical and representative. The impartial hearing officer may also require that an abstract of relevant data from the documents be presented in the form of an exhibit, provided that all parties be given the right to examine the documents from which such abstracts were made.
(c) The following laws, rules, regulations, and policies are officially noticed:
(1) The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701, et seq.;
(2) Department of Education regulations, 34 C.F.R. Part 361, 362, 363, 364, 365, and 367;
(3) Texas Human Resources Code, Chapter 91 and Chapter 111;
(4) Department of Assistive and Rehabilitative Services, Division for Blind Services' and Division for Rehabilitation Services' State Plan for Vocational Rehabilitation Services;
(5) Department of Assistive and Rehabilitative Services, Division for Blind Services, Vocational Rehabilitation and Independent Living Manuals; and Division for Rehabilitation Services, Rehabilitation Policy Manual;
(6) Texas Administrative Code, Title 40, Part 2, Department of Assistive and Rehabilitative Services.
(d) Official notice also may be taken of:
(1) all facts that are judicially cognizable; and
(2) generally recognized facts within the area of the Department's specialized knowledge.
§101.7069.Implementation of Final Decision.
If a party brings a civil action to challenge a final decision of an impartial hearing officer, the final decision involved shall be implemented pending review by the court.
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 August 8, 2008.
TRD-200804181
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 27, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.8011, 101.8013, 101.8015
The new rules are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§101.8011.Administrative Hearings Concerning Individual Child Rights.
(a) Purpose. This section is intended to bring the procedures for hearings of the Department into compliance with Part C of the Individuals with Disabilities Education Act, and the applicable federal regulations, 34 C.F.R. §303.1 et seq. This section supplements existing Department rules governing hearings and is intended to be applied together except where a conflict exists, in which case this section shall prevail.
(b) Definition. The term "public agency," when used in this section refers to the Department and any other political subdivision of the state responsible for providing early childhood services to eligible children and their families.
(c) Applicability. These sections shall apply to hearings under this Division 3 which involve the identification, evaluation, or placement of or the provision of appropriate early intervention services to the child and the child's family.
(d) Request for hearing.
(1) A parent may initiate a hearing on any matter described in subsection (c) of this section and in §101.7007 of this subchapter (relating to Filing a Request for Review).
(2) The request for hearing shall be in writing and filed as provided in §101.7007 of this subchapter with the ECI assistant commissioner. The request for hearing shall be deemed filed when actually received by the ECI assistant commissioner.
(e) Impartial hearing officer.
(1) Hearings shall be conducted by an impartial hearing officer appointed and selected as provided in §101.7011 of this subchapter (relating to Assignment of Impartial Hearing Officer) and §101.7015 of this subchapter (relating to Substitution of Impartial Hearing Officer). The hearing officer shall be a person who in addition to the qualifications listed in §101.7011 of this subchapter:
(A) is knowledgeable about the provision of ECI comprehensive services;
(B) is knowledgeable about the provisions of complaint management, needs of children and families, and the services available to the child and family;
(C) will listen to viewpoints about the complaint, examine information relevant to issue, and seek to reach timely resolution of the complaint; and
(D) will provide records of the proceedings, including written decision.
(2) The person shall not be an employee of the Department or any program involved in the provision of services or care to the child or the child's family, or have a personal or professional interest which would conflict with his or her objectivity in the hearing.
(3) A person is not an employee of an agency solely because the person is paid to implement the complaint resolution process.
(f) Hearing rights. In addition to those rights provided parties to a hearing under Division 1 of this subchapter (relating to General Rules), a party to a hearing shall have a right to:
(1) be accompanied and advised by counsel and by individuals with special knowledge or training with respect to early childhood intervention comprehensive services;
(2) prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before the hearing;
(3) obtain a written or electronic verbatim record of the hearing; and
(4) obtain written findings of fact, conclusions of law, and decision.
(g) Hearing procedures. In addition to the procedures provided in Division 1 of this subchapter:
(1) The hearing officer shall afford the parties an opportunity for hearing after reasonable notice of not less than 10 days, unless the parties have agreed otherwise.
(2) The hearing officer may issue subpoenas and commissions to take depositions pursuant to the Government Code, Chapter 2001. Subpoenas and commissions to take depositions shall be issued in the name of the Department.
(3) The hearing officer shall issue a final decision no later than 30 days after a request for hearing is filed. A final decision must be in writing and shall include findings of fact and conclusions of law, separately stated. Findings of fact must be based exclusively on the evidence and on matters officially noticed pursuant to the Government Code, Chapter 2001. The final decision shall be transmitted to each party by the hearing officer.
(4) Hearings conducted under these sections will be closed to the public unless the parent requests that the hearing be open.
(h) Child's status during proceedings.
(1) During the pendency of any administrative proceeding regarding a complaint, unless the parties agree otherwise, the child involved in the complaint must continue to receive appropriate comprehensive services previously agreed upon.
(2) If the complaint involves an application for initial admission to a program, the child must receive those comprehensive services not in dispute.
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 August 8, 2008.
TRD-200804182
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 27, 2008
For further information, please call: (512) 424-4050
40 TAC §§101.8051, 101.8053, 101.8055, 101.8057, 101.8059, 101.8061, 101.8063, 101.8065, 101.8067, 101.8069, 101.8071, 101.8073, 101.8075, 101.8077, 101.8079
The new rules are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§101.8059.Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate.
The Office may deny application; suspend or revoke certification; or otherwise discipline, reprimand, or place on probation a certificate holder for any of the following causes:
(1) violations of federal or state laws that are substantiated by credible evidence, whether or not there is a complaint, indictment, or conviction, such violations including, but not limited to, the following:
(A) any felony, including but not limited to homicide, rape, sexual abuse of a child, indecency with a child, injury to a child, aggravated assault, robbery, burglary, theft, forgery, bribery, and perjury;
(B) any misdemeanor involving moral turpitude that involves dishonesty, fraud, deceit, misrepresentation, deliberate violence, or that reflects adversely on the certificate holder's honesty, trustworthiness, or fitness to interpret under the scope of the person's certificate; or
(C) any offense involving theft or controlled substances;
(2) engaging in sexually inappropriate behavior with or comments directed at a consumer, including individuals who are part of the interpreted situation;
(3) using or being under the influence of drugs, whether or not controlled, or intoxicating liquors to an extent that affects the interpreter's professional competence;
(4) impersonating another person who holds an interpreter certification from the office;
(5) allowing another person to use their interpreter certification;
(6) representing oneself or another interpreter as having a level of certification different from the actual level of certification awarded by the Office, in excess of the actual level of certification;
(7) using fraud, deception, which includes, but is not limited to cheating, or misrepresentation in an application for certification, during the certification examination or evaluation, or in the certification maintenance or renewal process;
(8) violating or aiding in the violation of the Code of Professional Conduct described in §101.8061(a)(1) of this subchapter (relating to Codes of Professional Conduct and Ethics) or, with respect to certified court interpreters only, of the Code of Ethics and Professional Responsibility of Certified Court Interpreters described in §101.8061(a)(2) of this subchapter;
(9) being grossly incompetent or grossly negligent in performing the duties as an interpreter; or having demonstrated repeated and/or continuous negligence or irresponsibility in the performance of their duties;
(10) being adjudicated mentally incompetent by a court of competent jurisdiction;
(11) intentionally harassing, abusing, or intimidating, either physically or verbally, a consumer, including individuals who are part of the interpreted situation; a board member; evaluator; or any staff of the Department;
(12) intentionally divulging or using inappropriately any aspect of confidential information relating to the certification evaluation including content, topic, vocabulary, identity of individuals involved in the tests, skills, written test questions, and any other testing materials deemed confidential;
(13) failure to meet requirements for certification maintenance;
(14) engaging in the practice of interpreting while certification is suspended;
(15) falsification of re-certification documents by altering original letters, certificates issued through continuing education, or attendance verification; or
(16) violation of a statute, rule, or policy of the Office or Department.
§101.8061.Codes of Professional Conduct and Ethics.
(a) Applicable Codes of Conduct and Ethics.
(1) The Code of Professional Conduct of the National Association of the Deaf (NAD) and the Registry of Interpreters for the Deaf, Inc. (RID) shall govern the professional conduct of interpreters/transliterators certified by the Office.
(2) The Code of Ethics and Professional Responsibility of Certified Court Interpreters of the Office shall govern the professional conduct of court interpreters certified under Texas Government Code, Chapter 57.
(b) Willful violation of either the NAD-RID Code of Professional Conduct or the Code of Ethics and Professional Responsibility of Certified Court Interpreters is grounds for suspension or revocation of certification under §101.8059 of this subchapter (relating to Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate).
(c) Copies of the Codes.
(1) Copies of the NAD-RID Code of Professional Conduct may be obtained from the National Association of the Deaf, from the Registry of Interpreters for the Deaf, Inc., or from the Office.
(2) Copies of the Code of Ethics and Professional Responsibility of Certified Court Interpreters may be obtained from the Office.
§101.8067.Discovery and Evidence.
(a) The provisions of Texas Government Code, Chapter 2001, shall govern discovery and the admissibility of evidence.
(b) All discovery requests should be directed to the party from which discovery is being sought.
(c) All disputes with respect to any discovery matter shall be filed with and resolved by the impartial hearing officer.
(d) All parties shall be afforded a reasonable opportunity to file objections and motions to compel with the impartial hearing officer regarding any and all discovery requests.
(e) Copies of discovery requests and documents filed in response thereto shall be filed on all parties, but should not be filed with the impartial hearing officer or the Hearings Coordinator unless directed to do so by the impartial hearing officer or when in support of objections, motions to compel, motions for protective order, or motions to quash.
§101.8069.Documentary Evidence and Official Notice.
(a) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. On request, parties shall be given an opportunity to compare the original and the copy or excerpt.
(b) When numerous similar documents which are otherwise admissible are offered into evidence, the impartial hearing officer may limit the documents received to those which are typical and representative. The impartial hearing officer may also require that an abstract of relevant data from the documents be presented in the form of an exhibit, provided that all parties be given the right to examine the documents from which such abstracts were made.
(c) The following laws, rules, regulations, and policies are officially noticed:
(1) Texas Human Resources Code, Chapters 81 and 82;
(2) Texas Occupation Code, Chapter 53;
(3) Texas Administrative Code, Title 40, Part 2, Chapter 109, Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services; and
(4) where applicable, Texas Government Code, Chapter 57.
(d) Official notice also may be taken of:
(1) all facts that judicially cognizable; and
(2) generally recognized facts within the area of the Department's specialized knowledge.
§101.8075.Implementation of Final Decision.
If a party brings a civil action to challenge a final decision of an impartial hearing officer, the final decision involved shall be implemented pending review by the court.
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 August 8, 2008.
TRD-200804183
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 27, 2008
For further information, please call: (512) 424-4050
The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), adopts amendments to the DARS rules in Title 40, Part 2, Chapter 105, General Contracting Rules, Subchapter A, General Contracting Information, §105.1003, Definitions; Subchapter B, Contractor Requirements, §105.1013, General Requirements for Contracting; and Subchapter E, Adverse Actions, §105.1301, Adverse Actions. The rules are adopted without changes to the proposal as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4828) and will not be republished.
Specifically, these amendments update existing administrative contracting procedures and clarify the definition of "contract-related records" in §105.1003(7), contractor requirements in §105.1013(a) and (f), and reasons DARS may impose adverse actions in §105.1301(a).
In accordance with Texas Government Code, §2001.039, DARS conducted a four-year review of Title 40, Part 2, Chapter 105, of the DARS rules. Notice of the proposed rule review of Chapter 105 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863). DARS determined that the reasons for initially adopting these rules continue to exist. However, as a result of the review, DARS determined that amendments were needed to clarify and update existing administrative contracting procedures in accordance with state law as described above.
Elsewhere in this issue of the Texas Register , DARS contemporaneously adopts the rule review of Chapter 105.
The following statutes and regulations authorize the adopted amendments: Texas Government Code, Chapters 2155, 2252, 2261, and 2262.
No comments were received regarding adoption of the rules.
SUBCHAPTER A. GENERAL CONTRACTING INFORMATION
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804195
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804196
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804197
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), adopts amendments and repeals to DARS rules in Title 40, Part 2, Chapter 106, Division for Blind Services.
DARS adopts amendments to update and/or clarify legal references, remove obsolete language, and provide further clarification of the following rules: Subchapter C, Vocational Rehabilitation Program, §§106.507, 106.509, 106.513, 106.521, 106.527, 106.535, 106.551, 106.555, 106.557, 106.564, 106.568, 106.572, 106.582, 106.603, and 106.629; Subchapter D, Independent Living Programs, §§106.855, 106.859, and 106.933; Subchapter F, Blindness Education, Screening and Treatment Program, subchapter title and §§106.1103, 106.1105, and 106.1107; Subchapter G, Business Enterprises of Texas, §106.1227 and §106.1229; Subchapter I, Blind Children's Vocational Discovery and Development Program, §§106.1445, 106.1475, 106.1487, and 106.1489; Subchapter K, Memoranda of Understanding, §106.1607; Subchapter L, Advisory Committees and Councils, §106.1703; and Subchapter M, Donations, §106.1815. DARS adopts repeals of Subchapter C, Vocational Rehabilitation Program, §106.511; Subchapter K, Memoranda of Understanding, §106.1605; and Subchapter L, Advisory Committees and Councils, §106.1701 and §106.1705. Sections 106.509, 106.513, 106.521, 106.527, 106.535, 106.555, 106.557, 106.572, 106.582, 106.1103, 106.1227, 106.1445, 106.1475, 106.1487, 106.1489, 106.1607, 106.1703, 106.1815, 106.511, 106.1605, 106.1701 and 106.1705 are adopted without changes to the proposal as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4830) and will not be republished. Minor grammatical and/or editorial changes were made to §§106.507, 106.551, 106.564, 106.568, 106.603, 106.629, 106.855, 106.859, 106.933, 106.1105, 106.1107, and 106.1229; therefore these sections are adopted with changes to the text as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4830).
The amendments and repeals are adopted pursuant to the DARS four-year rule review of Chapter 106 as required by Texas Government Code, §2001.039. As the result of the review, DARS determined that the reasons for initially adopting these rules continue to exist. However, the review identified areas where amendments and repeals were needed to update and/or clarify legal references, remove obsolete language, and provide further clarification of rules provisions. Notice of the proposed rules review of Chapter 106 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8864).
Elsewhere in this issue of the Texas Register , DARS contemporaneously adopts the rule review of Chapter 106.
The following statutes authorize the promulgation of the proposed rules: Rehabilitation Act of 1973, §§701 et seq. (as hereafter amended), the Randolph-Sheppard Act, Texas Government Code, §§2001.01 et seq., and Texas Human Resources Code, Chapters 22, 35, and 91 (as hereafter amended).
No comments were received regarding adoption of the rules.
SUBCHAPTER C. VOCATIONAL REHABILITATION PROGRAM
DIVISION 1. GENERAL INFORMATION
40 TAC §§106.507, 106.509, 106.513
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.507.Public Access to Forms and Documents.
(a) All forms and documents used in the administration of the Vocational Rehabilitation Program are available for viewing at any Division office, including the central office at 4800 North Lamar, Austin, Texas, between 8:00 a.m. and 5:00 p.m. on work days.
(b) The Division's rules are published on the Department of Assistive and Rehabilitative Services website at www.dars.state.tx.us.
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 August 8, 2008.
TRD-200804198
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The repeal is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804199
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§106.521, 106.527, 106.535
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804200
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§106.551, 106.555, 106.557, 106.564, 106.568, 106.572, 106.582
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.551.Goods and Services.
(a) The Division, as appropriate to the vocational rehabilitation needs of each eligible person, provides goods and services necessary to render a consumer employable, subject to certain limitations prescribed in this subchapter and application of Division 4 of this subchapter (relating to Order of Selection for Services), and Division 5 of this subchapter (relating to Consumer Participation in Cost of Services).
(b) Services are provided only when planned in advance and contained in the consumer's IPE.
(c) Subject to the limitation prescribed in subsection (b) of this section, the following vocational rehabilitation services are available on an as-needed basis:
(1) assessment to determine eligibility;
(2) assessment to determine vocational rehabilitation needs;
(3) vocational counseling and guidance;
(4) physical and mental restoration services;
(5) vocational and other training services, including personal and vocational adjustment training, books, tools, and other training materials, except that no training or training services in an institution of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing) may be paid for with funds received under the provisions of the Act unless maximum efforts have been made by the Division and the individual to secure grant assistance in whole or in part from other sources to pay for that training;
(6) maintenance as defined in §106.559 of this title (relating to Maintenance);
(7) transportation as defined in §106.561 of this title (relating to Transportation);
(8) vocational rehabilitation services to family members of an applicant or eligible individual if necessary to enable the applicant or eligible individual to achieve an employment outcome;
(9) interpreter services and note-taking services for persons who are deaf and tactile interpreting for persons who are deaf-blind;
(10) reader services, rehabilitation teaching services, and orientation and mobility;
(11) recruitment and training services to provide new employment opportunities in the fields of rehabilitation, health, welfare, public safety, law enforcement, and other appropriate public services employment;
(12) job search, placement assistance, and job retention services;
(13) personal assistance services as defined in §106.574 of this title (relating to Personal Assistance Services);
(14) post-employment services as defined in §106.568 of this title (relating to Post-Employment Services);
(15) occupational licenses, tools, equipment, and initial stocks and supplies;
(16) transition services as defined in §106.576 of this title (relating to Transition Services;
(17) referral services;
(18) supported employment services as defined in §106.578 of this title (relating to Supported Employment Services);
(19) rehabilitation technology services as defined in §106.580 of this title (relating to Rehabilitation Technology Services); and
(20) technical assistance and other consultation services.
(d) If comparable services or benefits exist under any other program and are available to the consumer at the time needed to achieve the rehabilitation objectives in the individual's IPE, the Division shall use those comparable services or benefits to meet, in whole or in part, the cost of vocational rehabilitation services.
(e) If comparable services or benefits exist under any other program, but are not available to the consumer at the time needed to satisfy the rehabilitation objectives in the individual's IPE, the Division shall provide vocational rehabilitation services until those comparable services and benefits become available.
(f) The following services are exempt from a determination of the availability of comparable services and benefits:
(1) Assessment for determining eligibility and priority for services.
(2) Assessment for determining vocational rehabilitation needs.
(3) Vocational rehabilitation counseling, guidance, and referral services.
(4) Vocational and other training services, such as personal and vocational adjustment training, books (including alternative format books accessible by computer and taped books), tools, and other training materials in accordance with subsection (c)(5) of this section.
(5) Placement services.
(6) Rehabilitation technology.
(7) Post-employment services consisting of the services listed under subsection (b)(1) - (6) of this section.
(g) The requirements of subsection (e) of this section also do not apply if:
(1) the determination of the availability of comparable services and benefits under any other program would delay the provision of vocational rehabilitation services to any consumer who is determined to be at extreme medical risk, based on medical evidence provided by an appropriate qualified medical professional; or
(2) an immediate job placement would be lost due to a delay in the provision of comparable services and benefits.
§106.564.Interpreter Services and Note-taking Services for Individuals Who Are Deaf and Tactile Interpreting for Individuals Who Are Deaf-Blind.
If available, the division shall use interpreters certified by the Department of Assistive and Rehabilitative Services, Division for Rehabilitation Services, Office for Deaf and Hard of Hearing Services or by the Registry of Interpreters in the delivery of services to persons who are deaf or deaf-blind.
§106.568.Post-Employment Services.
(a) A consumer may be considered for post-employment services if he or she has been determined to be rehabilitated, is in need of help in maintaining employment, and has an employment-related problem that does not entail a complex rehabilitation effort or address a new and distinct substantial impediment to employment.
(b) Post-employment services must be incidental to the original impediment to employment, ancillary to the services provided through the consumer's Individualized Plan for Employment, and related to the previously planned vocational goal.
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 August 8, 2008.
TRD-200804201
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.603.Application.
(a) In determining whether to invoke an order of selection, the Assistant Commissioner for Blind Services shall apply the criteria set out in 29 U.S.C. §709, as amended, in 34 C.F.R. §361.36, and in the State Plan.
(b) The order of selection is applied after eligibility for services is determined.
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 August 8, 2008.
TRD-200804202
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.629.Maximum Allowable Amount.
(a) Economic resources in excess of the amount allowed by the division must be used to pay for the cost of vocational rehabilitation services. Maximum allowable amounts are contained in an Economic Resources Table available at any division office and may be obtained in accordance with §106.507 of this title (relating to Public Access to Forms and Documents).
(b) The maximum allowable amount may fluctuate according to relevant factors, such as established federal and state poverty levels, the funds available to the division for services, and the number of persons meeting the definition of family.
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 August 8, 2008.
TRD-200804203
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
DIVISION 1. GENERAL INFORMATION
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.855.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.
(1) Act--The Rehabilitation Act of 1973, as amended.
(2) Blind (person who is)--A person whose visual acuity with best correction is 20/200 or less in the better eye, or a person with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees, which means a visual field of no greater than 20 degrees in the better eye.
(3) Comparable services and benefits--Services and benefits that are provided or paid for, in whole or in part, by other federal, state, or local public agencies, by health insurance, or by employee benefits; available to the consumer; and commensurate in quality and nature to the services that the consumer would otherwise receive from the Division.
(4) Consumer--A person who has been determined eligible by the Division for independent living services.
(5) Disability--A physical or mental impairment that substantially limits one or more major life activities.
(6) Family--The consumer, parent(s), and/or legal guardian(s) and all individuals residing in the household for whom the consumer, parent(s) and/or legal guardian(s) have legal and financial responsibility.
(7) Independent Living Plan (IL Plan)--A written record that documents all phases of the consumer's rehabilitation process as developed by the independent living worker and the consumer.
(8) Individual with a disability--An individual with a visual impairment whose ability to function independently in the family or community or whose ability to obtain, maintain, or advance in employment is substantially limited and for whom the delivery of independent living services will improve the ability to function, continue functioning, or move toward functioning independently in the family or community or to continue in employment, respectively.
(9) Individual with a significant disability--An individual with a disability as defined in paragraph (8) of this section:
(A) who has a severe physical or mental impairment that seriously limits one or more functional capacities (such as mobility, communication, self-care, self-direction, interpersonal skills) in terms of independent living;
(B) whose independent living program can be expected to require multiple independent living rehabilitation services over an extended period of time; and
(C) who has one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, mental retardation, mental illness, multiple sclerosis, muscular dystrophy, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy), spinal cord conditions (including paraplegia and quadriplegia), sickle cell anemia, specific learning disability, end-stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and independent living needs to cause comparable substantial functional limitation.
(10) Representative--A parent, legal guardian, or other representative appointed by the court to represent the individual or an advocate or other family member designated in writing by the individual to represent the individual.
(11) Transportation--Travel and related expenses that are necessary to enable a consumer to benefit from another independent living service and travel and related expenses for an attendant or aide if the services of that attendant or aide are necessary to enable an individual with a significant disability to benefit from that independent living service.
(12) Visual impairment--A visual acuity, with best correction, of 20/70 or less in the better eye, or a visual field of 30 degrees or less in the better eye, or a combination of both.
§106.859.Service Delivery.
(a) Oversight and monitoring of service delivery. Service delivery shall be monitored by trained personnel through the use of onsite visits and standard case review checklists. The checklist shall contain sufficient information to evaluate case documentation, timely service delivery, and client progress towards goals.
(b) Guidance to service delivery staff. Service delivery staff shall be provided with written guidelines and training on developing consumer service plans, measuring and documenting consumer progress toward an expected outcome, and the timely authorization of services. The guidelines shall include, but are not limited to, the following:
(c) Reasonable Timeframes for Service Delivery. The following timeframes shall serve as benchmarks to service delivery staff and monitoring staff in evaluating a consumer's progress towards the expected outcome in the service plan.
(1) An eligibility decision will normally be made within 60 days from the time an application for services has been completed unless exceptional and unforeseen circumstances beyond the control of the division precludes a determination.
(2) Once an individual is determined eligible, a plan of services will normally be developed and agreed to within 90 days.
(3) A consumer will normally complete all planned services within 18 months.
(4) Post-closure services will normally not exceed 6 months.
(d) Financial planning information. Quarterly budget information shall be provided to division field directors. Field directors will disseminate this information to all caseload carrying staff for financial planning purposes.
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 August 8, 2008.
TRD-200804204
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.933.Scope.
All goods and services provided under this chapter are subject to this subchapter except the following:
(1) diagnostics and evaluation services (includes maintenance and transportation);
(2) counseling, guidance, and referral services provided by Division staff;
(3) independent living worker services;
(4) orientation and mobility training;
(5) low vision evaluations;
(6) adaptive aids, appliances, and supplies under $50;
(7) interpreter services;
(8) Criss Cole Rehabilitation Center training (includes transportation to and from the center);
(9) services paid for or reimbursed by a source other than the division; and
(10) training in management of secondary disabilities or related health conditions.
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 August 8, 2008.
TRD-200804205
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§106.1103, 106.1105, 106.1107
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.1105.Vision Screening Services.
(a) To be eligible to receive program vision screening services, an individual must be an adult resident of the state.
(b) Vision screening services may be provided through a contractor.
(c) Vision screenings shall be conducted by:
(1) Persons who have attended and completed vision screening training from the Texas Department of State Health Services and are currently certified as vision screeners; or
(2) Persons who have been trained by a vision screener currently certified by the Texas Department of State Health Services as a vision screener; or
(3) Persons who are eye care professionals licensed by the State of Texas (optometrists and ophthalmologists); or
(4) Persons who are trained and supervised by an eye care professional licensed by the State of Texas.
(d) Persons receiving vision screenings shall receive the screening results and, if necessary, a recommendation regarding the need for a follow-up examination by an eye care professional.
(e) When a referral is made for an eye examination to another agency or organization, the referral agency or organization's rules shall apply. A referral by the BEST program is not an endorsement of another agency, organization or eye care professional by the division.
§106.1107.Treatment Services.
(a) The purpose of treatment services is to prevent blindness by providing medical or surgical intervention to individuals at risk who are not covered under an adequate health benefit plan.
(b) To be eligible to receive treatment services from the program, an individual must be an adult resident of the state who:
(1) has been referred to the program by the individual's treating physician or optometrist;
(2) has certified to the physician or optometrist that the individual does not have health insurance or other available resources with which to pay for prescribed treatment to prevent blindness; and
(3) has been certified by the physician or optometrist as having a medically urgent eye condition that poses an imminent risk of permanent and significant visual loss if not treated with surgery or medical intervention.
(c) Medically urgent eye conditions shall include glaucoma, diabetic retinopathy, and detached retina. Any other medical condition, to qualify, must be determined to be medically urgent by both the referral's physician and the Division's ophthalmologic consultant or his designee.
(d) The BEST program is funded with voluntary donations. It is expected that service demand will exceed program resources. Therefore, funds may not be available for treatment services at the time an individual is referred for assistance.
(e) If an eligible individual is denied services by the program based on the inadequacy of donations to cover the cost of services, the physician may request that the individual be placed on a waiting list pending receipt of adequate funds. Individuals on the waiting list shall be served in order by referral date and time.
(f) All treatment services, including prescription drugs, must be approved in advance by the program to qualify for payment. All prescribed treatment services and requested payments must be itemized on the program's application form.
(g) Over-the-counter and nonprescription drugs are not covered by the program. Program assistance with the cost of eye-related drugs prescribed by a physician to prevent blindness shall be limited to the time the drugs are prescribed by the treating physician or optometrist or one year, whichever is less. The following are the procedures for payment for prescription drugs:
(1) Payments for approved prescription drugs shall be made only to the individual's pharmacy of choice.
(2) The Division shall pay for the prescription upon receiving an invoice.
(h) Payment for eye examinations that are a follow-up to a prescribed treatment paid for by the BEST Program and determined by a physician as medically necessary for chronic eye conditions such as glaucoma and diabetic retinopathy shall be limited to two examinations in the 12 months following surgery.
(i) Payments for treatment services shall be based on the division's adopted rate schedule for eye-related medical services as specified in Human Resources Code, §117.074, (also known as the division's Maximum Affordable Payment Schedule).
(j) Claims for payment must be received within 90 days from the date of each service. Claims received by the program that are lacking the information necessary for processing shall be denied as incomplete claims. The resubmission of the claim containing the necessary information must be received by the program within 60 days from the last denial date or payment will be declined. Excepted from this requirement is the payment for refills of drugs prescribed during the allowed period of one year.
(k) The program shall not pay cancellation charges, charges for missed appointments, or any other charge incurred other than for the actual provision of services.
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 August 8, 2008.
TRD-200804206
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§106.1229.Procedures for Resolution of Manager's Dissatisfaction.
(a) Appealable actions. These rules provide the procedures for licensees who are dissatisfied with a DARS/DBS action arising from the operation of BET.
(b) Actions not subject to appeal. The phrase "DARS/DBS action arising from the operation of BET" in subsection (a) of this section does not include the following actions of the DARS/DBS:
(1) the hiring, firing or discipline of DARS/DBS employees;
(2) the challenge of federal or state law, or rules previously approved by the Secretary of Education pursuant to the Randolph-Sheppard Act; or
(3) an action by the DARS/DBS unless it is alleged that the action is in violation of applicable law, these rules, the requirements of the BET manual, any proper and authorized instruction by DARS/DBS personnel, or is unreasonable. Unreasonable shall mean without rational basis or arbitrary and capricious.
(c) DARS/DBS discretion and sovereign immunity. The DARS/DBS does not waive its right and duty to exercise its lawful and proper discretion. The DARS/DBS does not waive its sovereign immunity.
(d) Remedies. Remedies available to resolve dissatisfaction shall correct the action complained of from the earlier time of:
(1) agreement by the parties as to an appropriate remedy, or
(2) a final resolution pursuant to the Randolph-Sheppard Act that the DARS/DBS acted in violation of applicable law, these rules, the requirements of the BET manual, any proper and authorized instruction by DARS/DBS personnel, or acted unreasonably.
(e) Informal procedures to review dissatisfactions. At the request of a licensee, the DARS/DBS shall arrange for and participate in informal meetings in an effort to quickly resolve a matter of dissatisfaction arising from the operation or administration of BET. The informal process is for the purpose of quickly and amicably resolving an issue in controversy. It is not for the purpose of denying or delaying the manager's right to pursue resolution of a matter through a full evidentiary hearing. At any point during the informal process, either party may elect to terminate the following procedures:
(1) A licensee may initiate informal procedures by notifying the DARS/DBS in writing through the BET Director that the licensee is dissatisfied with a matter arising from the operation or administration of BET. The written notice must describe with reasonable particularity the specific matter in controversy, the date the action occurred, or an approximate date if the exact date is not known, and the licensee's desired relief or remedy. If the licensee is dissatisfied with a series of the same or related actions over a period of time, the notice should describe to the best of the licensee's ability the timeframe of the events and include the date of the most recent event about which the licensee is dissatisfied.
(2) To ensure that informal resolution is possible in a timely manner, the licensee's request to initiate informal proceedings must be filed with the DARS/DBS no later than six months after the most recent event specified in the request. DARS/DBS shall within a reasonable time arrange a meeting at a location, date, and time satisfactory to all parties.
(3) The licensee must notify the DARS/DBS when filing a request for informal proceedings if the licensee will be represented by counsel during mediation. The DARS/DBS will be represented by counsel only when the licensee is represented by counsel.
(4) Meetings shall take place in an informal environment and shall be attended by the licensee, a BET staff person, and a neutral third party who shall serve as an informal mediator during the discussions.
(5) The neutral third party shall be a person certified in conducting mediations.
(6) The neutral third party's responsibility is to report to the DARS/DBS only that the effort to resolve the matter to the licensee's satisfaction was or was not successful. If an agreement is reached, then the actions agreed to with respect to the facility or licensee shall be forthwith taken.
(7) The provisions concerning mediation under Chapter 101, Subchapter J of this title (relating to Appeals and Hearing Procedures) shall not apply to or control the informal resolution procedures in this subchapter.
(f) Full evidentiary hearing. A manager has the right to request a full evidentiary hearing to resolve a dissatisfaction according to the following:
(1) A manager has the right to request a full evidentiary hearing without first going through mediated meetings described in subsection (e) of this section.
(2) A request for an evidentiary hearing must be made no later than the 20th business day after the occurrence of the agency action about which the manager complains. The Assistant Commissioner, upon request of the complaining party, may extend the time period for filing a grievance upon the showing of good cause by the complaining party for such additional period if such request is made no later than the 20th business day after the occurrence of the agency action about which the manager complains.
(3) A manager requesting a full evidentiary hearing after the conduct of mediated meetings described in subsection (e) of this section must request such hearing in writing no later than the 20th business day after receipt of the Assistant Commissioner's decision.
(4) A request for a full evidentiary hearing must be in writing and transmitted to the Assistant Commissioner. A request that is postmarked within the applicable time frame shall be considered timely delivered if properly posted.
(5) The request for a full evidentiary hearing must describe the specific action with reasonable particularity sufficient to provide notice as to the action which is alleged to be unreasonable or in violation of applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS personnel. The request must, to the best of the complainant's knowledge, contain the date the action occurred and the law or regulation must be reasonably identified if an action is alleged to be in violation of law, these rules, the requirements of the BET manual, or regulation. The request must also identify the desired relief or remedy.
(6) The manager may be represented in the evidentiary hearing by legal counsel or other representative of the manager's choice, at the manager's expense.
(7) Reader or other communication services, if needed, shall be arranged for the manager by the DARS/DBS upon request by the manager at least three business days prior to the hearing date.
(8) The manager shall be notified in writing of the time and place fixed for the hearing and of the manager's right to be represented by legal or other counsel.
(9) Selection of the Hearing Officer.
(A) The Hearings Coordinator, DARS Legal Services, shall select, on a random basis, a hearing officer from a pool of persons qualified according to these rules.
(B) The hearing officer shall be an impartial and qualified individual who:
(i) has no involvement either with the DARS/DBS action which is at issue or with the administration or operation of BET;
(ii) is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education);
(iii) has knowledge of the Randolph-Sheppard Act and any applicable state and federal regulations governing the appeal;
(iv) has received training specified by the Department with respect to the performance of official duties; and
(v) has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual.
(C) An individual is not considered to be an employee of a public agency for the purposes of clause (ii) of this subparagraph (B) solely because the individual is paid by the agency to serve as a hearing officer.
(10) Hearings shall be conducted in accordance with the Randolph-Sheppard Act, Texas Government Code §2001.051 et seq., and these rules to the extent those procedures do not conflict with the Act and its implementing regulations or these rules.
(11) Licensees bringing complaints shall have the burden of proving their cases by the preponderance of evidence. Licensees shall present their evidence first. When a hearing is requested as a result of administrative action by the DARS/DBS against a licensee, the DARS/DBS shall have the burden of proving its case by a preponderance of the evidence and shall present its evidence first.
(12) Transcription of Proceedings.
(A) Unless precluded by law, the hearing shall be recorded electronically by tape recorder or similar device either by the hearing officer or by someone designated by the hearing officer. Such tape recording shall be the official record of the testimony adduced during the hearing. Any party, however, may request, at the party's expense, that the hearing be recorded by a court reporter if the request is made within ten (10) days of the date for the hearing.
(B) In lieu either of a recording of the testimony electronically or of the reporting of testimony by a court reporter, the parties to a hearing may agree upon a statement of the evidence, agree to use taped transcription as a statement of the testimonial evidence, or agree to the summarization of testimony before the hearing officer; provided, however, that proceedings or any part of them must be transcribed on written request of any party.
(C) Unless otherwise provided in this subchapter, the party requesting a transcription of any electronic recording of the proceedings shall bear the cost for the transcribing of any such electronically recorded testimony. Nothing provided for in this section limits the Department to a stenographic record of the proceedings.
(D) The record of the proceedings, including exhibits and any transcription shall be made available to the parties by the DARS/DBS no later than the 30th business day after the close of the hearing.
(13) The hearing officer shall issue a recommendation which shall set forth the principal issues and relevant facts adduced at the hearing and the applicable provisions of law, rule, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS personnel. The recommendation shall contain findings of fact and conclusions with respect to each of the issues, and the reasons and bases for the conclusions.
(14) In formulating a recommendation, the hearing officer shall not evaluate whether the DARS/DBS actions were wise, efficient, or effective. Rather, the hearing officer is limited to determining whether the DARS/DBS actions were unreasonable, or violated applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS personnel.
(15) Should the hearing officer find that the actions taken by the DARS/DBS were unreasonable, or violated applicable law, these rules, the requirements of the BET manual, or any proper and authorized instruction by DARS/DBS personnel, the hearing officer shall also recommend any prospective action necessary to correct the violations.
(16) The hearing officer's recommendation shall be made no later than the 30th business day after the receipt of the official transcript. The recommendation shall be delivered promptly to the Assistant Commissioner.
(17) The Assistant Commissioner shall review the recommendation of the hearing officer and forward a decision to the manager no later than the 20th business day after receipt of the hearing officer's recommendation. The Assistant Commissioner's decision shall include findings of fact and conclusions of law based on the evidence in the record and separately stated.
(18) Subject to the provisions of Texas Government Code §2001.144 and §2001.146, the Assistant Commissioner's decision shall be the final decision of the Department. Any such decision becomes the final decision of the Department if a timely motion for rehearing or reconsideration is not filed.
(g) Arbitration. A manager appealing the DARS/DBS decision must file a complaint with the Secretary of Education in conformity with the provisions of the implementing regulations at 34 CFR, part 395.13 of the Act, pertaining to arbitration of vendor complaints.
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 August 8, 2008.
TRD-200804207
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804208
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804209
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804210
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The repeal is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804211
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804212
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804213
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804214
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804215
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), adopts new rules, amendments, and repeals to the DARS rules in Title 40, Part 2, Chapter 107, Division for Rehabilitation Services, Subchapter B, Vocational Rehabilitation Services Program; Subchapter F, Independent Living Services Program; Subchapter L, Comprehensive Rehabilitation Services; and Subchapter N, Memoranda of Understanding with Other State Agencies.
Specifically, in Subchapter B, Division 1, Provision of Vocational Rehabilitation Services, DARS adopts amendments to §§107.101, 107.107, 107.111, 107.115, 107.121, 107.123, 107.125, 107.129, 107.131, 107.133, 107.135, 107.137, and 107.139, and the repeal of §107.103; in Division 3, Comparable Benefits, an amendment to §107.173; in Division 4, Eligibility and Ineligibility, amendments to §§107.191, 107.195, and 107.197, and new §107.199; in Division 5, Methods of Administration of Vocational Rehabilitation, amendments to §§107.215, 107.219, 107.221, 107.223, and 107.225; in Subchapter F, amendments to §§107.801, 107.803, 107.805, 107.807, 107.809, 107.811, and new §107.806; in Subchapter L, amendments to §107.1201 and §107.1207; and in Subchapter N, an amendment to §107.1601, and the repeal of §§107.1607, 107.1609, and 107.1613. The rules are adopted without changes to the proposal as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4841) and will not be republished.
These new rules, amendments, and repeals are adopted pursuant to DARS' four-year rule review of Chapter 107, as required by Texas Government Code, §2001.039. Notice of the proposed rule review of Chapter 107 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8864). As a result of the review, DARS determined that the reasons for initially adopting these rules continue to exist. However, the review identified areas where new rules, amendments, and repeals are needed to remove rules that apply only to DARS's legacy agency, to delete outdated memoranda of understanding, for greater clarity and consistency with state and federal statutes and regulations, and for greater consistency with the vocational rehabilitation rules of the DARS Division for Blind Services.
Elsewhere in this issue of the Texas Register , DARS contemporaneously adopts the rule review of Chapter 107 and readopts the chapter with these new rules, amendments, and repeals.
The following statutes and regulations authorize the new rule, amendments, and repeals: the Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq., and Texas Human Resources Code, Chapters 111 and 117.
DARS, on behalf of HHSC, received one comment during the comment period.
Comment: The commenter, a representative of the Coalition for Nurses in Advanced Practice, recommended changing the proposed amendment to §107.113(d) (relating to Mental Restoration Services) to add Psychiatric-Mental Health Clinical Nurse Specialists and Psychiatric-Mental Health Nurse Practitioners licensed by the Texas Board of Nursing to the types of professionals that the DARS Division for Rehabilitation Services can utilize to provide mental restoration services. The commenter asserts that these professionals are fully competent to provide the mental health services required by DARS consumers.
Response: Section 107.113 is neither adopted nor withdrawn by this order. DARS will fully consider the comment and take appropriate action in the near future.
SUBCHAPTER B. VOCATIONAL REHABILITATION SERVICES PROGRAM
DIVISION 1. PROVISION OF VOCATIONAL REHABILITATION SERVICES
40 TAC §§107.101, 107.107, 107.111, 107.115, 107.121, 107.123, 107.125, 107.129, 107.131, 107.133, 107.135, 107.137, 107.139
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804223
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The repeal is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804224
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804225
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§107.191, 107.195, 107.197, 107.199
The amendments and new rule are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804226
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§107.215, 107.219, 107.221, 107.223, 107.225
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804227
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§107.801, 107.803, 107.805 - 107.807, 107.809, 107.811
The amendments and new rule are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804228
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804229
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The amendment is adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804230
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§107.1607, 107.1609, 107.1613
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804231
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The Texas Health and Human Services Commission ("HHSC"), on behalf of the Texas Department of Assistive and Rehabilitative Services ("DARS"), adopts amendments to the DARS rules in Title 40, Part 2, Chapter 108, Division for Early Childhood Intervention Services. DARS adopts amendments to Subchapter A, Early Childhood Intervention Service Delivery, §§108.23, 108.29, and 108.47. DARS also adopts the repeal of §108.63 and §108.67 of Subchapter B, Procedural Safeguards and Due Process Procedures. The rules are adopted without changes to the proposal as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4849) and will not be republished.
The adopted amendments clarify the definitions of "Family Educational Rights and Privacy Act of 1974 (FERPA)", "Provider", and "Supplanting" in §108.23; the meanings of "program income" and "maintenance of effort" in §108.29; and the standards of conduct in the Early Intervention Specialist code of ethics in §108.47. These amendments are for the purpose of more clearly complying with other controlling federal laws and state statutes. The content of the repeal of §108.63 is being transferred to Chapter 101, Subchapter J, Division 3, as new §101.8011 which is contemporaneously adopted elsewhere in this issue of the Texas Register. Section 108.67, "Charges for Access to Public Records" is being repealed because the procedures are either required by statute (Texas Government Code Chapter 552), by rules of the Attorney General, or are published by DARS in compliance with those statutes and rules.
In accordance with the requirements of Texas Government Code §2001.039, DARS has conducted a four-year review of Title 40, Part 2, Chapter 108, of the DARS rules. Chapter 108 consists of Subchapter A, Early Childhood Intervention Service Delivery, §§108.21, 108.23, 108.25, 108.27, 108.29, 108.31, 108.33, 108.35, 108.37, 108.39, 108.43, 108.47, and 108.48; Subchapter B, Procedural Safeguards and Due Process Procedures, §§108.55, 108.57, 108.59, 108.61, 108.63, and 108.67; Subchapter D, General Provisions for Case Management Services for Infants and Toddlers with Developmental Disabilities, §§108.221, 108.223, 108.225, 108.227, 108.229, 108.231, 108.233, and 108.235; Subchapter E, Developmental Rehabilitation Services, §§108.261, 108.263, and 108.265; and Subchapter F, System of Fees, §§108.291, 108.293, and 108.295. DARS has determined that the reasons for initially adopting these rules continue to exist except for Subchapter B, §108.63 and §108.67, because of the reasons stated above. Notice of the proposed rule review of Chapter 108 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8864).
Elsewhere in this issue of the Texas Register , DARS contemporaneously adopts the rule review of Chapter 108.
The adoption is authorized by the Texas Human Resources Code, Chapter 73; and The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and its implementing regulations; 34 C.F.R. Part 303, as amended.
No comments were received regarding adoption of the rules.
SUBCHAPTER A. EARLY CHILDHOOD INTERVENTION SERVICE DELIVERY
40 TAC §§108.23, 108.29, 108.47
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804232
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804233
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The Texas Health and Human Services Commission (HHSC), on behalf of the Texas Department of Assistive and Rehabilitative Services (DARS), adopts new rules, amendments, and repeals to the rules of the Texas Department of Assistive and Rehabilitative Services, Title 40, Part 2, Chapter 109, Office for Deaf and Hard of Hearing Services.
Specifically, DARS is adopting the following new rules, amendments, and repeals with respect to Chapter 109:
Subchapter A, General Rules: an amendment to §109.101, Definitions; and new §109.105, Training Fees, Gifts, Grants, or Donations, and §109.107, Trilingual Interpreter Services;
Subchapter B, Board for Evaluation of Interpreters and Interpreter Certification: deletion of the designation of a "Division 1" and its title "Definitions and Board Operations," as there are no other divisions listed under Subchapter B; the repeal of §109.201, Definitions, §109.209, Fees for Interpreter Training, §109.211, Trilingual Interpreter Services, §109.241, Revocation or Suspension of Certificate, §109.243, Grounds for Denying, Suspending, or Revoking an Interpreter's Certificate, and §109.245, Code of Professional Conduct; amendments to §109.203, Obtaining Documents and Information from the Office, §109.205, Registry of Qualified Interpreters, §109.223, Provisional Certificate, §109.231, Validity of Certificates and Recertification, §109.233, Certificate Renewal, 109.235, Continuing Education Programs; and new §109.227, Certification, §109.229, Administration of Examination for Court Interpreter Certification, and §109.237, Disciplinary Actions;
Subchapter C, Certified Court Interpreters: the repeal of §109.301, Definitions, §109.313, Lists of Qualified Court Interpreters and Providers of Communication Access Realtime Translation Services, §109.315, Gifts, Grants, or Donations, §109.321, Certification, §109.327, Administration of Examinations, §109.329, Form for Certificates, §109.331, Procedures for Renewal of a Certificate, §109.333, Fees for Training, Examinations, Initial Certification and Certification Renewal, §109.335, Continuing Education Programs Required for Court Interpreter Initial Certification or Certification Renewal, §109.341, Code of Professional Conduct, §109.351, Denial, Suspension, or Revocation of Certificate, and §109.353, Disciplinary Actions; amendments to §109.303, Requirements for Interpreting Court Proceedings in Courts of the State of Texas, §109.311, Obtaining Documents and Information from the Office, §109.323, Qualifications of Certified Court Interpreters, §109.325, Training Programs for Certified Court Interpreters Managed by the Department or by Public or Private Educational Institutions, §109.337, Instructions for the Compensation of a Certified Court Interpreter and Designation of the Party or Entity Responsible for Payment of Compensation, §109.339, Administrative Sanctions Enforceable by the Department, §109.361, Prohibited Acts, §109.363, Enforcement, §109.365, Criminal Offense, §109.367, Actions Against Persons Not Certified as Court Interpreters, §109.371, Court Interpreter Qualifications in Civil Cases or Depositions Pursuant to Civil Practice and Remedies Code and §109.373, Court Interpreter Qualifications in Criminal Actions Pursuant to Code of Criminal Procedure; and the title of Subchapter C is amended to "Certified Court Interpreters General Rules";
Subchapter D, Specialized Telecommunications Assistance Program: amendments to §109.403, Statutory Authority, §109.405, Definitions, §109.407, Determination of Basic Equipment or Service, §109.411, Entities Authorized to Certify Disability, and §109.415, Determination of Voucher Value.
Sections 109.101, 109.105, 109.107, 109.201, 109.209, 109.211, 109.241, 109.243, 109.245, 109.203, 109.205, 109.223, 109.227, 109.229, 109.231, 109.233, 109.235, 109.301, 109.313, 109.315, 109.321, 109.327, 109.329, 109.331, 109.333, 109.335, 109.341, 109.351, 109.353, 109.303, 109.311, 109.323, 109.325, 109.337, 109.339, 109.361, 109.363, 109.365, 109.371, 109.373, 109.403, 109.405, 109.407, 109.411 and 109.415 are adopted without changes to the proposal as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4850) and will not be republished. Sections 109.237 and 109.367 are adopted with changes to the proposed text as published in the June 20, 2008, issue of the Texas Register (33 TexReg 4850). The text of the rules will be republished. Editorial changes were made to correct the internal reference in §109.237(a) (from §101.1109 to §101.8059) and in §109.367(a)(3)(C) (from Subchapter E to Subchapter J).
The new rules, amendments, and repeals are adopted pursuant to Human Resources Code, Chapter 81; Texas Government Code, Chapter 57; Code of Criminal Procedure, Article 38; Civil Practices and Remedies Code, Chapter 21; and pursuant to DARS' four-year rule review of Chapter 109, which DARS conducted as required by Texas Government Code, §2001.039. As a result of the review, DARS determined that the reasons for originally adopting the rules continue to exist. However, the review identified areas where new rules, amendments, and repeals were needed to strengthen and clarify rules relating to DARS' Office for Deaf and Hard of Hearing Services and the services and programs that it administers on behalf of deaf and hard of hearing consumers, especially rules relating to DARS' interpreter certification programs. Notice of the proposed rule review of Chapter 109 was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8864).
Elsewhere in this issue of the Texas Register , DARS contemporaneously adopts the rule review of Chapter 109.
Note that the substantive contents of repealed §§109.201, 109.209, and 109.211, are being transferred and adopted contemporaneously elsewhere in this issue of the Texas Register in §109.101, Definitions, and new §109.105, Training Fees, Gifts, Grants, or Donations, and §109.107, Trilingual Interpreter Services, respectively, of Chapter 109, Subchapter A; and the substantive contents of repealed §§109.241, 109.243, and 109.245, are being transferred and adopted contemporaneously elsewhere in this issue of the Texas Register as new §101.8057, Revocation and Suspension of a Certificate, §101.8059, Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate, and §101.8061, Codes of Professional Conduct and Ethics, respectively, of Title 40, Part 2, Chapter 101, Administrative Rules and Procedures, Subchapter J, Appeals and Hearing Procedures, Division 4, Office for Deaf and Hard of Hearing Services.
Note that the substantive contents of §§109.321, 109.327, and 109.353, of Subchapter C, are being transferred and adopted contemporaneously elsewhere in this issue of the Texas Register in new §109.227, Certification, §109.229, Administration of Examination for Court Interpreter Certification, and §109.237, Disciplinary Actions, respectively, of Chapter 109, Subchapter B. Also note that the substantive contents of repealed §109.341 and §109.351, of Subchapter C, are being transferred and adopted contemporaneously elsewhere in this issue of the Texas Register as new §101.8059, Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate, §101.8061, Codes of Professional Conduct and Ethics, respectively, of Title 40, Part 2, Chapter 101, Administrative Rules and Procedures, Subchapter J, Appeals and Hearing Procedures, Division 4, Office for Deaf and Hard of Hearing Services.
No comments were received regarding adoption of the rules.
SUBCHAPTER A. GENERAL RULES
40 TAC §§109.101, 109.105, 109.107
The amendments and new sections are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804234
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
DIVISION 1. DEFINITIONS AND BOARD OPERATIONS
40 TAC §§109.201, 109.209, 109.211, 109.241, 109.243, 109.245
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804235
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§109.203, 109.205, 109.223, 109.227, 109.229, 109.231, 109.233, 109.235, 109.237
The amendments and new sections are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§109.237.Disciplinary Actions.
(a) The Department or Office may take disciplinary action against a certificate holder who is found to be in violation of a statute, rule, or policy of the Office or Department, including any of the provisions of §101.8059 of this title (relating to Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate).
(b) A disciplinary action may be composed of any one or combination of the following listed in paragraphs (1) - (6) of this subsection:
(1) revocation of a certification;
(2) suspension of a certification;
(3) probation of a suspended certification;
(4) refusal to renew a certification;
(5) issuance of a formal or informal reprimand; or
(6) with respect to certified court interpreters only, assessment of an administrative penalty under the law.
(c) All final disciplinary actions taken by the Department or by the Office shall be permanently recorded and made available upon request as public information. Except for an informal reprimand, all disciplinary actions may be released in a press release, and may be transmitted to the RID, as appropriate.
(d) An interpreter whose certification has expired for nonpayment of renewal fees continues to be subject to all statutory, rule, and procedural provisions of the Department governing certified interpreters until the certification is revoked by the Department or becomes nonrenewable under the law.
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 August 8, 2008.
TRD-200804236
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§109.301, 109.313, 109.315, 109.321, 109.327, 109.329, 109.331, 109.333, 109.335, 109.341, 109.351, 109.353
The repeals are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804237
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§109.303, 109.311, 109.323, 109.325, 109.337, 109.339, 109.361, 109.363, 109.365, 109.367, 109.371, 109.373
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
§109.367.Actions Against Persons Not Certified as Court Interpreters.
(a) The Office shall investigate complaints and may initiate disciplinary action against a person alleged to perform court interpretation without certification or authorization as provided by this subchapter. The following investigative process and resulting action listed in paragraphs (1) - (3) of this subsection will be followed by the Office to ensure affected individuals are afforded due process of law.
(1) Upon receipt of a formal or staff-initiated complaint, the information will be evaluated to determine if the evidence provides reasonable cause that a violation may have occurred.
(2) If reasonable cause does not exist, an investigation will not be initiated.
(3) If reasonable cause is found, then an investigation will be initiated by the Office staff to determine if a violation of law has occurred. The Office's investigative process will be as follows.
(A) The individual will be advised of the complaint and the specific section of the Act which appears to have been violated.
(B) The individual will be afforded the opportunity to respond to the complaint to show that the actions which precipitated the complaint are not in violation of the Act.
(C) If, after evaluation of the individual's response, a violation appears evident, the individual will be afforded the opportunity for a hearing as provided to certificate holders under Chapter 101, Subchapter J, Divisions 1 and 4 of this title (relating to General Rules and Office for Deaf and Hard of Hearing Services) or to resolve the complaint through a Department order, which may include the imposition of an administrative penalty.
(b) Authority: Texas Government Code, §§57.022(b)(8), 57.026, and 57.027.
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 August 8, 2008.
TRD-200804238
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
40 TAC §§109.403, 109.405, 109.407, 109.411, 109.415
The amendments are adopted pursuant to HHSC's statutory rulemaking authority under Texas Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of the Texas Health and Human Services Commission with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.
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 August 8, 2008.
TRD-200804239
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Effective date: August 31, 2008
Proposal publication date: June 20, 2008
For further information, please call: (512) 424-4050
The Texas Board of Occupational Therapy Examiners adopts the amendment to §373.3, concerning Supervision of a Licensed Occupational Therapy Assistant, with changes to the proposed text as published in the May 9, 2008, issue of the Texas Register (33 TexReg 3726) and will be republished.
The amended section is adopted, in part, to clarify the manner in which a COTA/LOTA shall be documented in a supervision log.
Two comments were received from individuals. Both comments contended that the term "therapist" was not specific enough for the rule. The board substituted the designations COTA/LOTA.
The amendment is adopted under the Occupational Therapy Act, Title 3, Subchapter H, Chapter 454, Occupations Code, which provides 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.
§373.3.Supervision of a Licensed Occupational Therapy Assistant.
(a) A COTA/LOTA shall provide occupational therapy services only under the supervision of a licensed occupational therapist.
(b) Supervision of a full time employed COTA or LOTA by the OTR or LOT includes:
(1) A minimum of six hours a month of frequent communication between the supervising OTR(s) or LOT(s) and the COTA or LOTA by telephone, written report, email, conference etc., including review of progress of patient's/client's assigned, plus
(2) A minimum of two hours of supervision a month of face-to-face, real time interaction with the OTR(s) or LOT(s) observing the COTA or LOTA providing services with patients/clients.
(3) These hours shall be documented on a COTA/LOTA Supervision Log for each employer. The OTR/LOT or employer may request a copy of the COTA Supervision Log. The COTA Supervision Log is kept by the COTA/LOTA and signed by an OTR/LOT when supervision is given.
(c) Licensees working part-time or less than a full month within a given month may pro-rate these hours, but shall document no less than four hours of supervision per month, one hour of which includes face-to-face, real time interaction by the OTR(s) and LOT(s) observing the COTA or LOTA providing services with patients/clients. Those months where the licensee does not work as a COTA/LOTA, he or she shall write N/A in the COTA Supervision Log for that month.
(d) COTAs or LOTAs with more than one employer must have a supervisor at each job whose name is on file with the board and must receive supervision by an OTR or LOT, as outlined for part-time employment in this section.
(e) The OTA must include the name of the supervising OT in each patient's treatment note.
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 August 6, 2008.
TRD-200804097
John Maline
Executive Director
Texas Board of Occupational Therapy Examiners
Effective date: August 26, 2008
Proposal publication date: May 9, 2008
For further information, please call: (512) 305-6900