40 TAC §§104.1, 104.2, 104.5, 104.6, 104.8
The Texas Rehabilitation Commission (TRC) proposes amendments
to §§104.1, 104.2, 104.5, 104.6, and 104.8, concerning Informal
and Formal Appeals by Applicants/clients of Decisions by a Rehabilitation
Counselor or Agency Official. This action is taken to more fully inform appellants
of their rights to a fair hearing.
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has
determined that for the first five-year period the proposed amendments will
be in effect, there will be no fiscal implications for state or local government
as a result of enforcing or administering the rules.
Mr. Harrison, Jr., also has determined that for each year of the first
five years the amendments are in effect, the public benefit anticipated is
to more fully inform appellants of their rights to a fair hearing. There
will be no effect on small businesses. There is no anticipated economic costs
to persons who are required to comply with the rules as proposed.
Comments on the proposal may be submitted to Charles W. Schiesser, Texas
Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 7110, Austin,
Texas 78751.
The amendments are proposed under Texas Human Resources Code
Annotated, Title 7, §111.018, which provides the Texas Rehabilitation
Commission with the authority to promulgate rules consistent with Title 7,
Texas Human Resources Code Annotated.
The Texas Human Resources Code, Chapter 111, Title 7, §111.018 is
affected by these proposed amendments.
§104.1.Purpose and Scope.
(a)
Purpose. The purpose of these rules is to provide the
Texas Rehabilitation Commission with a system for the institution, conduct,
and determination of "informal" and "formal appeals" as those terms are defined
herein. These rules shall be liberally construed in accordance with the purpose
for which they were adopted.
These rules inform all
applicants and persons served by TRC of their due process right to appeal
when they are dissatisfied with any determination made by a rehabilitation
counselor or agency official regarding the furnishing or denial of services.
(b)
Statutory Authority. These rules are created [under the
authority delegated to the Commission by]
pursuant
to
the Rehabilitation Act of 1973, as amended, 29 United States Code
Annotated (USCA) §§701 et seq. and Department of Education Regulations
at 34 Code of Federal Regulation (CFR), §361.48.
Federal laws and regulations prevail over state laws and regulations.
The Administrative Procedure Act, Texas Government Code Annotated, §§2001.001
et seq. does not apply to client administrative hearings which are conducted
pursuant to federal law.
(c)
(No change.)
§104.2.Definitions.
The following words and terms, when used in this section, shall have
the following meaning, unless the context clearly indicates otherwise.
Commission
- The Texas Rehabilitation Commission
(TRC),
its officers and agents.
Impartial hearing officer (IHO)
- Individual who is selected on a random basis and
is appointed by the commissioner
to hear a formal appeal pursuant
to these rules.
The IHO is selected from a pool of
qualified persons identified jointly by TRC and by members of the TRAC.
Respondent
- The Texas Rehabilitation Commission
(TRC).
Texas Rehabilitation Commission Advisory Council
(TRAC)
- The council created by Human
Resources Code, Title 7, §111.016 in accordance with the federal Rehabilitation
Act amendments of 1992, Public Law 102-569.
§104.5.Formal Appeal.
(a)
(No change.)
(b)
Role of Commissioner's Office for Administrative Hearings.
Upon receipt of the Petition for Administrative Hearing, the Commissioner's
Office for Administrative Hearings shall:
(1)-(2)
(No change.)
(3)
select the impartial hearings officer (IHO), who is
appointed by the commissioner, on a random basis from a [panel of] pool of qualified persons identified jointly by TRC and
the TRAC in accordance with
[individuals pursuant to] the Rehabilitation
Act [Amendments of 1992, (Public Law 102-569)] within ten days of receipt
of the Petition for Administrative Hearing and immediately forward a copy
of the Petition for Administrative Hearing to the IHO.
(4)-(8)
(No change.)
(c)
Impartial Hearing Officer.
(1)
Qualifications. The IHO:
(A)
cannot be an employee of a public agency [(other than
an administrative law judge, hearing examiner, or employee of an institution
of higher education)];
(B)-(F)
(No change.)
(2)
(No change.)
(d)
(No change.)
(e)
Prehearing Procedures.
(l)-(2)
(No change.)
(3)
Settlement Conferences.
(A)
Upon request of any party and approval by the IHO, or
at the IHO's discretion, a conference
outside the
presence of the IHO
may be held to address settlement.
(B)-(C)
(No change.)
(4)
(No change.)
(f)-(i)
(No change.)
(j)
Hearing.
(1)
The IHO shall set the date and time for the hearing. The hearing must take place within 45 days of the request
unless additional time is granted as authorized by law.
The location
shall be the Commission's regional or area office nearest the Appellant's
residence or as agreed to by the parties.
(2)-(5)
(No change.)
(k)
Impartial Hearing Officer Decision.
(1)
Within 30 days of the hearing completion date, the IHO
shall issue [a decision]
an opinion based on the
provisions of the approved State plan, the applicable regulations, and the
Act
which shall contain
separately stated
:
(A)
Findings of fact; [and conclusions of law, separately
stated; and]
(B)
[If appropriate, an order.]
Conclusions
of law; and
(C)
Opinion.
(2)
The Commissioner's Office for Administrative
Hearings shall submit the IHO [decision]
opinion
to the Commissioner with a copy to each party.
§104.6.Action by the Commissioner.
(a)
The Commissioner cannot delegate the responsibility for
making any final Commission [decision]
order
to any other officer or employee of the Commission.
(b)
Within 20 days of the mailing of the IHO's [decision], opinion
the Commissioner will decide whether or
not to formally review the [decision]
IHO opinion
by studying the [decision]
opinion
and the official case record.
The Commissioner shall
notify the appellant in writing of his or her intent to review within 20
days of the mailing of the IHO opinion.
(1)
If the Commissioner fails to provide the required written notice, the IHO
opinion is final.
(2)
[1] If the Commissioner
decides not to formally review the IHO's [decision],
opinion
the [decision]
opinion
of
the IHO becomes [the] final. [ Commission decision, and]
In that case,
the Commissioner will issue an order [affirming] making
the [decision]
opinion
of the IHO
final
.
(3)
[2] If the Commissioner decides
to formally review the IHO's [decision],
opinion,
the Commissioner will issue an order to that effect and
written notice
of this [decision]
order
will be sent to
the Appellant by certified mail, return receipt requested.
(4)
[3] The parties will then
have 15 days [from the date the notice that the Commissioner has decided
to review the IHO's decision is mailed by the Commissioner's Office for
Administrative Hearings]
in which
to submit
any additional relevant evidence.
The fifteeen day
period begins on the date of the order that informs the parties that the
Commissioner will review the opinion of the IHO.
(5)
[4] Within 30 days
of the mailing of [notice of intent]
the Commissioner's
order
to review the IHO's [decision],
opinion
the Commissioner shall [make a final decision]
issue a final order
and provide a full report to all parties in
writing of [that decision],
the reasons for the order
including [the] findings
of fact
[and grounds for the decision]
and conclusions of
law separately stated.
(c)
The Commissioner's [decision to review]
order reviewing
the IHO's [decision]
opinion
will be based on the following standards of review.
(1)
The Commissioner may not overturn
or
[nor] modify [a decision]
an opinion
of an IHO, or part of [a decision],
an opinion
that supports the position of the Appellant unless the Commissioner concludes,
based on clear and convincing evidence, that the [decision]
opinion
of the IHO is clearly erroneous on the basis of being contrary
to federal or state law, including policy.
(2)-(3)
(No change.)
(4)
The review
[Review] may
result in affirming the [decision]
opinion
of the IHO in whole or in part or reversing or remanding the case to the
IHO for further proceedings.
(5)
The review
[Review] may
result in reversing or remanding the [decision]
opinion
of the IHO when the record of the hearing or [decision]
opinion
contains any one or more of the following, and the [decision] opinion
is found to be:
(A)-(F)
(No change.)
(6)
When none of the conditions in paragraph (5)
of this subsection are present in the record of the hearing or the [decision,
review shall result in affirming the decision]
opinion,
an order affirming the opinion
of the IHO
shall be issued
.
§104.8.Judicial Review of Final Order.
[29 United States Code Annotated §722(d)(1), provides the Commissioner
with authority to establish procedures for appealing agency decisions including
judicial review.] Pursuant to
these rules and 29
United States Code §722
(d)(1) [that authority, the Commissioner
grants exclusive jurisdiction to] the district [court]
courts
of Travis County,
Texas, have jurisdiction
to hear appeals of final [decisions]
orders
of the Commission. The standard of review will be by substantial
evidence. A party may seek judicial review of the final order of the Commission
by appealing to the Travis County District [Court]
Courts
within 30 days of receipt of notice that a party's motion
for rehearing has been overruled.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on January 9, 1997.
TRD-9700391
Charles W. Schiesser
Associate Commissioner for Legal Services
Texas Rehabilitation Commission
Earliest possible date of adoption: February 21, 1997
For further information, please call: (512) 424-4051