Part XIX.
Texas Department of Protective and Regulatory Services
Chapter 700.
Child Protective Services
The Texas Department of Protective and Regulatory Services (TDPRS)
proposes amendments to §700.316 and §700.2501, concerning eligibility
requirements for Title IV-E, MAO, and state-paid foster care assistance, and
general requirements for contracting with licensed residential child-care
providers, in its Child Protective Services chapter. The purpose of the amendments
is to make state policy consistent with new federal regulations regarding
contracting with for-profit residential treatment centers. Federal law has
changed to allow Title IV-E payments to for-profit institutions.
Cindy Brown, Budget and Analysis Division Director, has determined that
for the first five-year period the proposed sections will be in effect there
will be no fiscal implications for state or local government as a result of
enforcing or administering the sections.
Ms. Brown also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be adequate resources for children in TDPRS conservatorship.
There will be no effect on small businesses. There is no anticipated economic
cost to persons who are required to comply with the proposed sections.
Questions about the content of the proposal may be directed to Margaret
Monk at (512) 438-5326 in TDPRS's Child Protective Services department. Written
comments on the proposal may be submitted to Supervisor, Rules and Handbooks
Unit-056, Texas Department of Protective and Regulatory Services E-205, P.O.
Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the
Subchapter C. Eligibility for Child Protective Services
40 TAC §700.316
The amendment is proposed under the Texas Family Code, Title
5, Chapters 261 and 264, which authorizes the department to provide services
to alleviate the effects of child abuse and neglect. In addition, the amendment
is proposed under Public Law Number 96-272, Title I, which authorizes the
department to administer foster-care and adoption assistance programs provided
for under the Social Security Act, Title IV-E.
The amendment is also proposed under the Human Resources Code (HRC), Chapter
40, which describes the services authorized to be provided by the Texas Department
of Protective and Regulatory Services; and authorizes the department to enter
into agreements with federal, state, or other public or private agencies or
individuals to accomplish the purposes of the programs authorized by the HRC;
and grants authority to contract to that Department.
The amendment implements the HRC, Chapter 40, which authorizes the department
to enter into agreements with federal, state, or other public or private agencies
or individuals to accomplish the purposes of the programs authorized by the
HRC and which authorizes the department to enter into contracts as necessary
to perform any of its powers or duties.
§700.316. Eligibility Requirements for Title IV-E, MAO, and State-Paid Foster Care Assistance.
The child must meet all of the following criteria to be
eligible for Title IV-E, Medical Assistance Only (MAO), or state-paid foster
care assistance.
(1)-(3)
(No change.)
(4)
Placement. The child must be receiving care in Texas
in a licensed, certified, or verified foster home or a licensed, private,
nonprofit child-caring institution approved for TDPRS foster-care assistance,
except in the following circumstances.
(A)-(C)
(No change.)
(D)
If the child is placed in a licensed residential
treatment center, the facility may be for profit.
[
[
[
(5)-(8)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Issued in Austin, Texas, on January 2, 1998.
TRD-9800028
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: April 1, 1998
For further information, please call: (512) 438-3765
40 TAC §700.2501
The amendment is proposed under the Texas Family Code, Title
5, Chapters 261 and 264, which authorizes the department to provide services
to alleviate the effects of child abuse and neglect. In addition, the amendment
is proposed under Public Law Number 96-272, Title I, which authorizes the
department to administer foster-care and adoption assistance programs provided
for under the Social Security Act, Title IV-E.
The amendment is also proposed under the Human Resources Code (HRC), Chapter
40, which describes the services authorized to be provided by the Texas Department
of Protective and Regulatory Services; and authorizes the department to enter
into agreements with federal, state, or other public or private agencies or
individuals to accomplish the purposes of the programs authorized by the HRC;
and grants authority to contract to that Department.
The amendment implements the HRC, Chapter 40, which authorizes the department
to enter into agreements with federal, state, or other public or private agencies
or individuals to accomplish the purposes of the programs authorized by the
HRC and which authorizes the department to enter into contracts as necessary
to perform any of its powers or duties.
§700.2501. General Requirements for Contracting with Licensed Residential Child-Care Providers.
(a)
(No change.)
(b)
Organizational and licensing requirements. To enter into
a contract with TDPRS to provide substitute care to children in TDPRS's managing
conservatorship, a licensed residential child-care provider must meet the
following organizational and licensing requirements:
(1)
Requirement for nonprofit status. The provider must be
a legally incorporated nonprofit entity
unless the entity is licensed
as and contracting for services as a residential treatment center, in which
case the entity may be a for-profit entity
. [
(2)-(3)
(No change.)
(c)-(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on January 2, 1998.
TRD-9800027
C. Ed Davis
Deputy Director, Legal Services
Texas Department of Protective and Regulatory Services
Proposed date of adoption: April 1, 1998
For further information, please call: (512) 438-3765
Chapter 823.
General Hearings
The Texas Workforce Commission (Commission) proposes new §§823.1-823.3,
823.11-823.15, 823.31-823.34, and 823.41-823.44 concerning a general hearing
process for the Commission.
New Chapter 823, concerning General Hearings is proposed as the location
of the new rules.
The new rules will govern administrative programs of the Commission including
but not limited to Child Care, Proprietary Schools and Welfare-to Work program
hearings. This hearing process specifically does not apply to programs that
are governed by hearing procedures provided for by statutes or rules promulgated
under Texas Administrative Code, Title 40, Part XX, Chapters 805 (JTPA) and
815 (Unemployment and Labor Law). The new rules set forth the hearing procedures
to meet federal and state fair hearing requirements within the purview of
the Commission as required by provisions such as 40 U.S.C. §602(a)(4)
and 7 U.S.C. §2020(e)(10) as currently worded and as may be amended.
New Subchapter A relating to General Provisions is proposed.
New Subchapter B relating to Pre-hearing Procedure is proposed.
New Subchapter C relating to Conduct of Hearing is proposed.
New Subchapter D relating to Decision, Non-appearance, and Rehearing is
proposed.
New §823.1 sets forth the short title and purpose of Chapter 823.
New §823.2 sets forth the definitions that apply to Chapter 823.
New §823.3 sets forth the information on rights of appeal regarding
Chapter 823.
New §823.11 provides for the procedure for requesting a hearing
New §823.12 provides for the procedure for setting of a hearing.
New §823.13 sets out the procedure and grounds for a postponement.
New §823.14 sets out the procedure regarding evidence to be used at
the hearings.
New §823.15 sets out the grounds and procedures for hearing officer
disqualification and withdrawal.
New §823.31 provides for the general hearing procedure.
New §823.32 sets out the procedures for continuance of a hearing.
New §823.33 sets out the procedures for withdrawal of an appeal.
New §823.34 provides for a change in the determination.
New §§823.41-823.43 detail the procedure regarding hearing decisions,
reopened decisions for non-appearance and rehearing decisions respectively.
New §823.44 sets out the provisions regarding finality of decisions.
Randy Townsend, Director of Finance, has determined that for the first
five-year period the sections are in effect, there will be no foreseeable
fiscal implications for state or local government as a result of enforcing
or administering the new rules. Mr. Townsend estimates that there will be
no foreseeable cost reductions to the state and to local governments, no foreseeable
net effect in revenues as a result of enforcing and administering the rules,
and no foreseeable implications relating to costs or revenues to the state
or to governments. There is no anticipated economic costs to persons who are
required to comply with the section as proposed and there will be no foreseeable
effect on small businesses.
Ferris Duhon, Acting Deputy Director of Legal Services, also has determined
that for each year of the first five years the rules are in effect, the public
benefit anticipated as a result of enforcing the rules will be that the public
will have a more uniform, clear and concise hearing procedure.
Official comments must be received by the Commission no later than February
16, 1997. Comments on the proposal may be submitted to Ferris Duhon, Acting
Deputy Director of Legal Services, at the Texas Workforce Commission Building,
101 East 15th Street, Room 264, Austin, Texas 78778 (512) 463-2293. Comments
may also be submitted via fax to (512) 463-1426 or e-mail to: ferris.duhon@twc.tx.state.us.
Subchapter A. General Provisions
40 TAC §§823.1-823.3
The new rules are proposed under Texas Labor Code, §301.061
and §302.002, which provides the Texas Workforce Commission with the
authority to adopt, amend, or rescind such rules as it deems necessary for
the effective administration of Texas Workforce Commission programs; Texas
Human Resources Code §§31.012, 31.0125, 44.002(a) and 44.035(d)
which provide the Texas Workforce Commission with authority to adopt rules
to carry out the respective chapters; and Texas Education Code, §132.023,
which provides the Commission with the authority to adopt such rules necessary
for carrying out Chapter 132.
The proposed rules affect Texas Labor Code, Title 4, Subtitle B, Chapter
301, 302 and 305; Texas Education Code, Chapter 132; and Texas Human Resources
Code, Chapter 44.
§823.1. Short Title and Purpose.
(a)
This chapter provides a hearing process to the extent
authorized by federal and state law and rules administered by the Commission.
(b)
This chapter shall not pertain to review of determinations
regarding:
(1)
across-the-board reductions of services, benefits or assistance
to a class of recipients;
(2)
matters governed by Texas Labor Code, Title 2, Subtitle
B, Restrictions on Labor and Subtitle C, Wages;
(3)
matters governed by Texas Labor Code, Title 4, Subtitle
A, Texas Unemployment Compensation Act;
(4)
all programs funded in all or in part with monies
allocated under the Job Training Partnership Act, 29 U.S.C. 1501 et seq.;
and
(5)
matters governed by hearing procedures otherwise
provided for within 40 TAC Part XX, Texas Workforce Commission.
§823.2. Definitions.
The following words and terms, when used in this chapter, have the
following meanings, unless the context clearly indicates otherwise.
Appellant
- The party or the party's authorized hearing representative
who files an appeal from an appealable determination or decision.
Commission
- The Texas Workforce Commission.
Date of notice
- The date of receipt of a determination or
notice. Absent a signed, certified-mail, return receipt card, which shall
be prima facie evidence of the date of receipt, there shall be a presumption
that the determination or notice is received 5 (five) days after mailing of
the determination or notice unless good cause exists for the hearing officer
to determine otherwise.
Date of request of hearing
- The date on which the appellant
or the hearing representative filed a written notice of appeal with the contractor
or Commission. If an appeal is mailed to the contractor or Commission, then
the appeal is perfected as of the postmark date on the envelope containing
the appeal request unless good cause exists for the hearing officer to determine
otherwise.
Hearing
- A hearing is an informal, orderly, and readily available
proceeding held before an impartial hearing officer. At the hearing, a party
or hearing representative may present evidence to show that the determination
should be reversed, affirmed or modified.
Hearing officer
- A hearing officer is a Commission employee
designated to conduct fair hearings and issue final administrative decisions.
Party
- The person or entity with the right to participate
in a hearing authorized in applicable statute or rule.
Proprietary school appeal
- An appeal pursuant to Texas Education
Code, Chapter 132, Subchapter D relating to Proprietary Schools.
§ 823.3. Information on Right of Appeal.
An issuer of a determination must inform the applicant or any person
directly aggrieved by the determination of the right to a hearing. The notice
must explain the procedure for an appeal, the person's right of appeal, and
the right to be represented by others, including legal counsel.
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 5, 1998.
TRD-9800060
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 16, 1998
For further information, please call: (512) 463-8812
40 TAC §§823.11-823.15
The new rules are proposed under Texas Labor Code, §301.061
and §302.002, which provides the Texas Workforce Commission with the
authority to adopt, amend, or rescind such rules as it deems necessary for
the effective administration of Texas Workforce Commission programs; Texas
Human Resources Code §§31.012, 31.0125, 44.002(a) and 44.035(d)
which provide the Texas Workforce Commission with authority to adopt rules
to carry out the respective chapters; and Texas Education Code, §132.023,
which provides the Commission with the authority to adopt such rules necessary
for carrying out Chapter 132.
The proposed rules affect Texas Labor Code, Title 4, Subtitle B, Chapter
301, 302 and 305; Texas Education Code, Chapter 132; and Texas Human Resources
Code, Chapter 44.
§823.11. Request for Hearing.
(a)
The party seeking review of a determination under this
Chapter relating to General Hearings must request a hearing in writing within
sixty days of the date of notice of the determination unless:
(1)
the appeal is a proprietary school appeal wherein a party
seeking review must request a hearing in writing within fifteen days after
receipt of notice of the determination,
(2)
or as otherwise provided in 40 TAC Part XX relating
to the Texas Workforce Commission.
(b)
The request must be addressed as provided in the determination
and state the nature of the determination, the name and identifying information
of the requesting party, and a request that the determination be reviewed.
The request should include an explanation of why the determination should
be changed; however, this is not a jurisdictional requirement.
(c)
Parties needing special accommodations including the need
for a bilingual or sign language interpreter or other accommodations should
request such before the setting of the hearing, if possible, or as soon as
practical.
§823.12. Setting of Hearing.
(a)
After the Commission receives the request for hearing,
the hearing officer will issue within thirty days a notice of hearing which
sets the hearing for a reasonable time and place. In proprietary school appeals
the hearing shall be held within thirty days from the receipt of the request
for an appeal.
(b)
The notice of hearing must be in writing and include a
statement of the time, place, and nature of the hearing; a statement of the
legal authority under which the hearing is to be held; and a short and plain
statement of the matters asserted and to be proved.
(c)
The notice of hearing must be sent to the requesting party
at least ten days before the date of the hearing unless a shorter period is
permitted by statute.
(d)
The hearing notice will also contain a statement of whether
the hearing will be conducted by telephone or the location of the in-person
hearing.
(e)
Hearings will be conducted by telephonic means, unless
the appellant requests a hearing in person except in proprietary school appeals
where hearings are conducted in person in Austin unless the parties agree
to a telephonic hearing and/or a different location.
§823.13. Postponement.
The hearing officer may grant a postponement of a hearing for good
cause at either party's request. Except in emergencies or unusual circumstances
confirmed by a telephone call or other means, no postponements may be granted
within two days of the scheduled hearing.
§823.14. Evidence.
(a)
Evidence Generally. The parties are not bound by technical
rules of evidence. Evidence will be admitted and given probative effect if
it possesses probative value and is relevant as determined by the hearing
officer.
(b)
Exchange of Documentary Evidence. Any documentary evidence
to be presented during the telephonic hearing shall be exchanged with the
opposing side with a copy to the Commission in advance of the hearing. Any
documentary evidence to be presented at an in-person hearing shall be exchanged
at the hearing. A party has the right to review, upon request, any documentary
materials submitted to or by the hearing officer.
(c)
Stipulations. The parties to an appeal, with the consent
of the hearing officer, may stipulate in writing to the facts involved. The
hearing officer may decide the appeal based on such stipulation or, in the
hearing officer's discretion, may set the appeal for hearing and take such
further evidence as is deemed necessary for determining the appeal.
(d)
Discovery. The hearing officer may order other forms of
discovery deemed appropriate.
(e)
Experts and Evaluations. The hearing officer may order,
at a party's request and expense, if relevant and useful, an independent expert
or a professional evaluation from a source satisfactory to the parties and
the Commission.
(f)
Ex parte communications. Private (ex parte) communications
of information, whether oral or written, about the substantive issues of the
appeal are allowed only if the substance is shared with all parties to the
appeal by the party initiating the communication within a reasonable amount
of time.
(g)
Confidential information. Statutorily confidential information
shall be protected in accordance with state and federal law.
§823.15.Hearing Officer Disqualification and Withdrawal.
(a)
Disqualification. A hearing officer is disqualified if
the hearing officer directly participated in the determination under review.
The hearing officer participated if the hearing officer:
(1)
reviewed either the file or a summary of it to assist
in making the determination; or
(2)
has a personal interest in the outcome of the appeal
decision.
(b)
Withdrawal. The hearing officer may withdraw from a hearing
to avoid the appearance of impropriety or partiality. Upon withdrawal, the
hearing officer refers the case to an alternate hearing officer who will be
chosen by the hearing officer's supervisor.
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 5, 1998.
TRD-9800061
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: February 16, 1998
For further information, please call: (512) 463-8812
The child qualifies
for Level of Care (LOC) VI, and no nonprofit, residential child care facility
that can meet the child's needs is available in the area in which the child
must be placed. When no nonprofit facility is available for a LOC VI child,
the child may receive care in a licensed, for-profit facility that provides
LOC VI services. The facility must enter into an agreement with TDPRS to provide
services to children in the department's conservatorship at the department's
normal payment rates. A child placed in a for-profit facility at LOC VI may
continue to receive care in the facility if his LOC changes, as long as
]
(i)
the child's needs are best served by
his remaining in the facility, and
]
(ii)
the facility agrees to continue serving
the child at the new LOC.
]
Subchapter Y. Contracting with Licensed Residential Child-Care Providers
Exception: If a child
requires level-06 care at the time of placement as specified in §700.2307
of this title (relating to Definition of Level 06), TDPRS has the authority
to place the child with a for-profit residential child-care provider that
provides care at level 06. If the child's level of care is subsequently reduced
to level 05, the for-profit provider may continue to care for the child, if
doing so is in the child's best interest, until the child's functioning stabilizes
and TDPRS can arrange a planned transfer to a nonprofit caregiver. The director
of the Office of Protective Services for Families and Children (PSFC) must
approve each contract with a for- profit provider.
]
Part XX.
Texas Workforce Commission
Subchapter B. Pre-Hearing Procedure
Subchapter C. Conduct of Hearing