Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 20.
COST DETERMINATION PROCESS
40 TAC §§20.102, 20.105, 20.108
The Texas Department of Human Services (DHS) proposes amendments
to §20.102, concerning general principles of allowable and unallowable
costs; §20.105, concerning general reporting and documentation requirements,
methods, and procedures; and §20.108, concerning determination of inflation
indices, in its Cost Determination Process chapter. The purpose of the amendments
is to change the cost report training cycle to require training every odd-numbered
year, so that training will be required on the cost report that will be used
to determine payment rates for the state's biennium. A process will be established
for providers filing for bankruptcy to obtain a waiver of the requirement
that accrued expenses must be paid within 180 days after the end of the cost
reporting period. The references from the Implicit Price Deflator - Personal
Consumption Expenditures inflation index will be revised to references to
the Personal Consumption Expenditures chain-type price index that was developed
as a more accurate overall inflation index. Providers with records outside
of the state of Texas would be required to make the necessary records available
to auditors within Texas within 15 working days of notification; otherwise,
the provider must pay for the actual travel costs of the auditor to conduct
the on-site audit out-of state.
Eric M. Bost, commissioner, has determined that for the first five-year
period the sections are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the sections.
Mr. Bost 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 to provide guidance to contracted providers regarding
cost determination procedures and guidelines. The changes will make the cost
report training cycle the same cycle for all providers, will allow providers
that have filed for bankruptcy to include their allowable costs in rate determination
when the bankruptcy process may have delayed some payments of expenses past
the 180 days currently required to be considered allowable for rate determination,
will use the revised inflation index that is a more accurate overall inflation
index, and will provide a definite deadline to providers with out-of-state
records as to when those records must be brought to Texas to be audited on-
site. There will be no effect on large, small, or micro businesses, because
no changes in practice are required of any business. There is no anticipated
economic cost to persons who are required to comply with the proposed sections.
Questions about the content of this proposal may be directed to Carolyn
Pratt at (512) 438-4057 in DHS's Rate Analysis department or section). Written
comments on the proposal may be submitted to Supervisor, Rules and Handbooks
Unit-253, Texas Department of Human Services E-205, P.O. Box 149030, Austin,
Texas 78714-9030, within 30 days of publication in the
Texas Register
.
Under §2007.003(b) of the Texas Government Code, the department has
determined that Chapter 2007 of the Government Code does not apply to these
rules. Accordingly, the department is not required to complete a takings impact
assessment regarding these rules.
The amendments are proposed under the Human Resources Code, Title
2, Chapters 22 and 32, which authorizes the department to administer public
and medical assistance programs; and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendments implement the Human Resources Code, §§22.001-22.030
and §§32.001-32.042.
§20.102.General Principles of Allowable and Unallowable Costs.
(a)-(c)
(No change.)
(d)
Cost report training. DHS is responsible for conducting,
at no charge to the provider, comprehensive cost report training for each
contracted program. [
(1)-(2)
(No change.)
(e)-(k)
(No change.)
§20.105.General Reporting and Documentation Requirements, Methods, and Procedures.
(a)
(No change.)
(b)
Cost report requirements. Unless specifically stated in
program rules, each provider must submit financial and statistical information
on cost report forms provided by DHS, or on facsimiles which are formatted
according to DHS specifications and are pre-approved by DHS staff, or electronically
in DHS- prescribed format in programs where these systems are operational.
The cost reports must be submitted to DHS in a manner prescribed by DHS. The
cost reports must be prepared to reflect the activities of the provider while
delivering contracted services during the fiscal year specified by the cost
report. Cost reports or other special surveys or reports may be required for
other periods at the discretion of DHS. Each provider is responsible for accurately
completing any cost report or other special survey or report submitted to
DHS.
(1)
Accounting methods. All financial and statistical information
submitted on cost reports must be based upon the accrual method of accounting,
except where otherwise specified in §§20.102 and 20.103 of this
title (relating to General Principles of Allowable and Unallowable Costs,
and Specifications for Allowable and Unallowable Costs) and in the case of
governmental entities operating on a cash or modified accrual basis. For cost-reporting
purposes, accrued expenses must be incurred during the cost reporting period
and must be paid within 180 days after the end of that cost reporting period.
In situations where a contracted provider, any of its controlling entities,
its parent company/sole member, or its related-party management company has
filed for bankruptcy protection, the contracted provider may request an exception
to the 180-day requirement for payment of accrued allowable expenses by submitting
a written request to the Rate Analysis Department of DHS. The written request
must be submitted within 60 days of the date of the bankruptcy filing or at
least 60 days prior to the due date of the cost report for which the exception
is being requested, whichever is later. The contracted provider will then
be requested by the Rate Analysis Department to provide certain documentation,
which must be provided by the specified due date. Such exceptions due to bankruptcy
may be granted for reasonable, necessary and documented accrued allowable
expenses that were not paid within the 180-day requirement.
Accrued
revenues must be for services performed during the cost reporting period and
do not have to be received within 180 days after the end of that cost reporting
period in order to be reported as revenues for cost- reporting purposes. Except
as otherwise specified by the cost determination process rules of this chapter,
cost report instructions, or policy clarifications, cost reports should be
prepared consistent with generally accepted accounting principles (GAAP),
which are those principles approved by the American Institute of Certified
Public Accountants (AICPA). Internal Revenue Service (IRS) laws and regulations
do not necessarily apply in the preparation of the cost report. In cases where
cost reporting rules differ from GAAP, IRS, or other authorities, DHS rules
take precedence for provider cost-reporting purposes.
(2)-(6)
(No change.)
(c)-(e)
(No change.)
(f)
Cost of out-of-state audits. As specified in §20.106
of this title (relating to Basic Objectives and Criteria for Audit and Desk
Review of Cost Reports), DHS conducts desk reviews of all cost reports not
selected for field audit. DHS also conducts field audits of provider records
and cost reports. Although the number of field audits performed each year
may vary, DHS seeks to maximize the number of field audited cost reports available
for use in its cost projections. Whenever possible,
all
the records
necessary to verify information submitted to DHS on cost reports, including
related party transactions and other business activities engaged in by the
provider, must be accessible to DHS audit staff within the state of Texas
within fifteen working days of field audit or desk review notification
.
When records are not available to DHS audit staff within the state of Texas,
the provider must pay the actual costs for DHS staff to travel and review
the records out-of-state. DHS must be reimbursed for these costs within 60
days of the request for payment.
(1)-(2)
(No change.)
(g)-(h)
(No change.)
§20.108.Determination of Inflation Indices.
(a)-(c)
(No change.)
(d)
General cost inflation index. DHS uses the [
(e)
Item-specific and program-specific inflation indices. DHS
may use specific indices in place of the general cost inflation index specified
in subsection (d) of this section when appropriate item-specific or program-specific
cost indices are available from DHS cost reports or other surveys, other Texas
state agencies or independent private sources, or nationally recognized public
agencies or independent private firms, and DHS has determined that these specific
indices are derived from information that adequately represents the program(s)
or cost(s) to which the specific index is to be applied. For example, DHS
may use specific indices pertaining to cost items such as payroll taxes, key
professional and non-professional staff wages, and other costs subject to
specific federal or state limits. The specific indices that DHS may use include
the following.
(1)-(3)
(No change.)
(4)
Inflation factors for key professional and/or paraprofessional
staff wages and salaries, e.g., nurses, nurse aides and attendants, are based
on wage survey data pertaining to specific types of professional and paraprofessional
staff in Texas when DHS has determined that reliable data of this kind are
available for specific or comparable programs. Projections from the cost reporting
period to the reimbursement period are based on discernible trends or experience
as evidenced by the most recent reliable data available at the time proposed
reimbursement is prepared for public dissemination and comment, and take into
consideration economic conditions and regulatory changes which may be reasonably
anticipated for the reimbursement period. When DHS has determined that reliable
wage and salary data pertaining to specific types of staff in Texas are unavailable
for specific or comparable programs, inflation factors for professional and/or
paraprofessional staff are based on the lowest feasible forecast of the
PCE
[
(5)
(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.
Filed with the Office of
the Secretary of State, on July 6, 2000.
TRD-200004701
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 438-3108
Chapter 177.
VETERANS HOUSING ASSISTANCE PROGRAM
40 TAC §§177.1, 177.5, 177.6
The Veterans Land Board of the State of Texas (the "Board")
proposes amendments to §177.1 relating to Definitions, §177.5 relating
to Loan Eligibility Requirements and §177.6 relating to Application Procedures.
The amendments to these rules address the eligibility of persons to participate
in the Veterans Housing Assistance Program and the Veterans Home Improvement
Program ("the programs"), and procedures for applying for loan benefits in
those programs. In order to be approved for a loan in the programs, the applicant
must: (1) be certified as an eligible Texas veteran, as defined in Chapter
177, and (2) satisfactorily complete all loan approval requirements of the
Board and the participating lending institution, if any.
Section 177.1, relating to Definitions, defines terms used in all other
sections of Chapter 177. The proposed amendment deletes the definition for
"Commission" (the Texas Veterans Commission), corrects the meaning of the
term "VA" and adds a definition for the term "missing in action."
Section 177.5, relating to Loan Eligibility Requirements, describes loan
eligibility requirements for the programs. The proposed amendment deletes
all references to the Texas Veterans Commission (TVC), deletes the requirement
that loan applicants be citizens of the United States, increases the scope
of eligibility to include members of the reserves of the various military
branches of the United States and to include the spouses of those missing
in action. The proposed amendment also deletes repetitive language and clarifies
the eligibility of persons who have previously participated in any of the
loan programs of the Board, and the maximum total loan available to spouses
who are both individually eligible and wish to combine two loans on a single
home.
Section 177.6, relating to Application Procedures, describes loan application
procedures for the programs. The proposed amendment deletes all references
to the Texas Veterans Commission and further provides that the Board may adopt
resolutions from time to time that describe specific guidelines and procedures
for processing and approving loan applications in the programs.
The proposed amendments, if adopted, will transfer all eligibility certification
functions currently performed by the TVC to the Board, clarify the description
of persons eligible to participate in the programs, and allow the Board to
adopt resolutions that implement loan application and processing procedures.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the sections as amended are in effect,
there will be no fiscal implications to state or local government as a result
of enforcing or administering the sections.
Larry Soward, Chief Clerk of the General Land Office, has determined that
for each year of the first five years the sections as proposed will be in
effect, the public will benefit from increased efficiency in the programs.
The consolidation of the eligibility certification process with the loan application
review and approval process will reduce the time necessary to fund loans.
The public will further benefit from the expansion of the eligibility criteria
of the programs. The Board is authorized to modify the definition of an eligible
Texas veteran. The proposed amendments extend the benefits of the programs
to members of the reserve components of the various branches of the military
of the United States and to the surviving spouses of Texas veterans who are
missing in action. The proposed amendments clarify the benefits available
when both husband and wife are eligible Texas veterans wishing to combine
loans on the same house, and clarify when a Texas veteran may participate
more than once in the programs.
The proposed amendments also permit the Board to change guidelines and
procedures for processing loan applications in the program in a much more
timely manner. By the adoption of resolutions, rather than rule changes, the
Board may respond more quickly to changes in the residential mortgage industry,
take advantage of new technologies, enjoy cost savings, and pass these benefits
on to participants in the programs.
Mr. Soward has determined that the proposed amendments will have no effect
on small businesses during each year of the first five years the sections
are in effect.
Mr. Soward has also determined that during each year of the first five
years the proposed amendments are in effect, there is no anticipated economic
cost to any persons who are required to comply with the sections.
Comments may be submitted to Melinda Tracy, 1700 North Congress Avenue,
Austin, Texas, 78701-1496 no later than 30 days after publication. Comments
may also be faxed to (512) 463-6311 or e-mailed to melinda.tracy@GLO.state.tx.us.
The amendments to the sections are proposed under the Natural
Resources Code, Title 7, Chapter 162, Subchapter A, §162.003, which provides
authorization for the Board to contract with other agencies or with private
entities to administer all or part of the programs, set and collect reasonable
fees, and adopt rules governing the administration of the programs.
Natural Resources Code §§162.001(a)(8), 162.003(a)(2), 164.002(a)(6),
and 164.003 are affected by this proposed action.
§177.1.Definitions.
The following words and terms when used in this section, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)-(4)
(No change.)
[(5)
Commission--The Texas Veterans Affairs
Commission.]
(5)
[
(6)
[
(7)
[
(8)
[
(9)
[
(10)
[
(11)
Missing/Missing in Action -- To have
an official designation of "missing status" as provided by Title 37, Chapter
10 of the United States Code. The term "missing status" means the status of
members of a uniformed service who are officially carried or determined to
be absent in a status of missing; missing in action; interned in a foreign
country; captured, beleaguered, or besieged by a hostile foresee; or detained
in a foreign country against their will.
(12)
Participating lending institution--Any bank, trust company,
savings bank, national banking association, savings and loan association,
building and loan association, mortgage banker, mortgage company, credit union,
life insurance company, or other financial
institution
that customarily
provides services or aids in the financing of mortgages on single-family residential
housing, including a holding company for any of the foregoing, which has sought
and received approval [
(13)
(No change.)
(14)
VA--The
United States Department of Veterans Affairs
[
(15)
(No change.)
§177.5.Loan Eligibility Requirements.
(a)
[
(b)
For purposes of this program a veteran is someone who:
(1)
is at least 18 years of age;
[(2)
is a citizen of the United States of
America; ]
(2)
[
(3)
meets the following service requirements:
(A)
[
(B)
has completed all initial active duty
training required as a condition of the enlistment or appointment in the Texas
National Guard; or
(C)
has at least 20 years of active or reserve
military service as computed when determining the applicant's eligibility
to receive retired pay under applicable federal law.
(4)
[
(5)
[
(A)
for purposes of determining if an applicant has resided
in Texas for two continuous years preceding the date of application, the
board
[
(B)
if there is doubt about an applicant's bona fide residence
at time of enlistment, induction, commissioning, or drafting, the
board
[
[(7)
for purposes of this chapter an eligible
veteran may obtain both a purchase money loan and a home improvement loan
under the Veterans Housing Assistance Program. An eligible veteran may also
receive a loan under the land program.]
(c)
If a veteran dies after the date of filing an application
for a loan and before the transaction has been completed, the surviving spouse
shall be eligible to complete that transaction if the spouse otherwise meets
the qualification requirements of the participating lending institution. In
addition, the unmarried surviving spouse of a veteran who dies in the line
of duty or is identified as missing in action shall be eligible to participate
in the program if the following requirements are satisfied:
(1)
(No change.)
(2)
at the time of enlistment, induction, commissioning, appointment
or drafting, the deceased
or missing
veteran was a bona fide resident
of Texas (the two years residence alternative is not available);
[(3)
the deceased veteran was a citizen of
the United States at the time of death; ]
(3)
[
(4)
[
(d)
A veteran may be able to obtain more than one housing assistance
loan under this chapter, provided that all previous
Veterans Housing
Assistance Program,
loans have been repaid in full and that only one
home may be financed by a veteran at any time.
However, for purposes
of this chapter, an eligible veteran may obtain both a purchase money loan
and a home improvement loan under the Veterans Housing Assistance Program.
An eligible veteran may also receive a loan under the program.
(e)
If both a husband and wife are individually eligible to
participate in the program, nothing herein shall be construed to prohibit
each of them from applying for a loan to jointly purchase the same home. Therefore,
the board may make two loans for the purchase of the same home by two veterans
who are husband and wife, but only in the event that both spouses together
satisfy the loan qualification requirements of the participating lending institution.
The total amount of these two loans shall not exceed the maximum amount allowable
for a similar home mortgage loan through the VA or any successor agency.
§177.6.Application Procedures.
(a)
The administrator shall distribute to participating
lenders all application materials required for the program by the board. Participating
lending institutions may only charge fees that have been approved by the board.
The board may establish by resolution any procedures for obtaining the board's
approval of fees.
[
(b)
The board shall establish by resolution all policies,
procedures, and requirements for the submission and review of loan applications,
including the certification of eligibility of the veteran.
[
[(1)
The commission shall provide the chairman
a list of all applicants which shows the commission's approval or disapproval
of each application. ]
[(2)
If the commission disapproves an application,
the commission shall also notify the participating lending institution which
submitted the application. The participating lending institution shall notify
the veteran applicant of the disapproval of the application. ]
(c)
If the veteran has previously participated in the
program, the veteran must have satisfactorily paid in full all prior program
loans in order to be eligible to participate in the program again. If the
veteran has an active Veterans Land Program loan at the time of application,
it must be in good standing.
[
(d)
The board may establish by resolution all other procedures
and policies relating to the submission, review, processing, approval, and
funding of program loans. In doing so, the board shall review the prudent
lending practices prevalent in the residential mortgage lending industry and
shall follow such practices to the maximum extent practical.
[
[(e)
The participating lending institution
will then complete complete its processing of the loan and will close and
fund it. The mortgage loan will be submitted to the administrator for review.
As these loans are approved by the administrator, they will be purchased on
a monthly basis by the board, and the participating lending institution will
be reimbursed. ]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 7, 2000.
TRD-200004714
Larry R. Soward
Chief Clerk, General Land Office
Veterans Land Board
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 305-9129
Chapter 805.
JOB TRAINING PARTNERSHIP ACT RULES
Subchapter H. NONDISCRIMINATION AND EQUAL OPPORTUNITY
40 TAC §§805.260 - 805.269
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Workforce Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Workforce Commission (Commission) proposes
the repeal of Chapter 805, Subchapter H, §§805.260-805.269, relating
to Nondiscrimination and Equal Opportunity.
Background and Purpose: The Job Training Partnership Act (JTPA) was repealed
and the State has fully implemented the Workforce Investment Act (WIA) (29
U.S.C.A. §§2801
et seq.
) program,
which replaces the JTPA in Texas. The provisions in Chapter 805 Subchapter
H are to be replaced with the provisions set forth in the new and amended
rules proposed concurrently for Chapter 841, §§841.201-841.215 and
Chapter 839, §839.11, contained in this issue of the
Texas Register
.
Randy Townsend, Chief Financial Officer, has determined that for the first
five years the repeals are in effect, the following statements will apply:
there are no additional estimated costs to the state and to local governments
expected as a result of enforcing or administering the repeals;
there are no estimated reductions in costs to the state or to local governments
expected as a result of enforcing or administering the repeals;
there are no estimated losses or increases in revenue to the state or to
local governments as a result of enforcing or administering the repeals;
there are no foreseeable implications relating to costs or revenues to
the state or to local governments expected as a result of enforcing or administering
the repeals; and
there are no anticipated costs to persons who are required to comply with
the repeals as proposed.
Mr. Townsend has also determined that there is no anticipated adverse impact
on small businesses as a result of enforcing or administering the repeals
because the costs required to comply with the repeals are costs directly required
to comply with federal statute and regulations.
Barbara Cigainero, Director of Workforce Development, has determined that
the public benefit anticipated as a result of the repeals as proposed will
be to assure compliance with federal statutory and regulatory requirements
for nondiscrimination and equal opportunity, and to assist the Boards in meeting
these requirements and preventing any interruption in access to federal funds.
Mark Hughes, Director of Labor Market Information, has determined that
there is no foreseeable negative impact upon employment conditions in this
state as a result of these proposed repeals.
Comments on the proposed repeals may be submitted to Pat Garland, Equal
Opportunity Office, Texas Workforce Commission, 101 East 15th Street, Room
220, Austin, Texas, 78778; Fax Number (512) 463-2444; or E-mail to pat.garland@twc.state.tx.us.
The repeals are proposed under Texas Labor Code §301.061
and §302.002, which provide the Texas Workforce Commission with the authority
to adopt, amend or repeal such rules as it deems necessary for the effective
administration of Commission services and activities.
The proposal affects Texas Labor Code, Title 4, and Texas Government Code,
Chapter 2308.
§805.260.State Equal Opportunity Officer.
§805.261.SDA/SSA Equal Opportunity Officers.
§805.262.Notice of Equal Opportunity.
§805.263.Accessibility Standards.
§805.264.Required Assurance of Compliance.
§805.265.Data Collection and Maintenance.
§805.266.Complaints of Discrimination.
§805.267.Jurisdiction.
§805.268.Corrective Actions and Remedies.
§805.269.Sanctions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 10, 2000.
TRD-200004748
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
The Texas Workforce Commission proposes the repeal of §§815.1-815.33
and new §§815.1-815.3, 815.10, 815.15-815.28, 815.32, 815.101-815.109,
815.111-815.115, 815.128-815.131, and 815.133, concerning the Unemployment
Insurance process.
Concurrent with the proposal of new rules, the Commission adopts the review
of Chapter 815, relating to Unemployment Insurance, consistent with the notice
as published in the February 25, 2000, issue of the
Texas Register
(25 TexReg 1732). No comments were received on the rules
for review.
The purpose of the proposed rules is to interpret and administer the provisions
of Texas Labor Code, Title 4, Subtitle A, entitled the Texas Unemployment
Compensation Act (the Act). More specifically, the new rules incorporate substantially
all of the requirements currently contained in 40 TAC Chapter 815, which is
concurrently proposed for repeal and reflect changes to the business practices
of the Tax, Benefits, and Appeals functions. Some of the changes are nonsubstantive
changes, which include rearranging and rewording subsections and creating
two new subchapters. Because of the extensive nature of the changes, the Commission
proposes the repeal of the current rules and proposes new rules. A document
reflecting the changes to the rules may be viewed at www.twc.state.tx.us/twcinfo/rules/prorules.html,
or requested by calling (512) 463-7234, faxing (512) 475-1133, e-mailing LaSha.Barefield@twc.state.tx.us,
or writing to the Texas Workforce Commission, 101 East 15th Street, Room 658,
Austin, Texas, 78778-0001.
In general, the rules are modified to more accurately reflect the current
business practices of the Agency, as well as to enhance administrative efficiency,
consistency, and to provide clarity throughout Chapter 815. Gender references
are deleted in the chapter. More specific changes resulted in new rules or
modifications to current rules.
Subsection A contains §§815.1-815.3 and sets out the general
provisions regarding the Unemployment Insurance process. More specifically,
the purpose of the sections contained in Subchapter A are as follows.
Section 815.1 sets out the definitions for the chapter. Terms were added
to the previous definitions, including "Agency," "Appeals," "Board," "Commission,"
and "person." The definition for base period was clarified.
Section 815.2 sets out the requirements regarding the general determination
of mailing dates and the use of forms. Section 815.2 was redrafted to clarify
that the mailing dates provisions of §815.32 also apply to the Benefits
functions.
Section 815.3 sets out the general rules relating to the use of addresses
and is amended to conform to legislative changes to the Act.
Subchapter B contains §§815.10-815.32 and sets out the provisions
relating to appeals and benefits. Many of the unemployment insurance local
offices have closed or have been converted to Local Workforce Board offices.
Since these locations are part of the Texas Workforce Network as described
at 40 TAC Chapter 801, Subchapter B, the proposed rules provide that appeals
of determinations and decisions may be filed at these offices. The sections
pertaining to the Appeal Hearings are modified to reflect the deletion of
the words "benefit" and "entitlement;" since the Appeal Hearings procedures
are also used to appeal determinations and decisions relating to situations
where benefits are charged back to the employer's account, when benefits are
cancelled or forfeited, and the procedures are used to some extent in the
Rule 13 Hearings. Some of the subsections in the rules concerning the Appeal
Hearings procedure are rearranged to more accurately reflect the chronology
of the process. The procedures regarding continuances and appearances are
amended to reflect current practices.
Specifically, the purposes of the sections contained in Subchapter B are
as follows.
Section 815.10 sets out provisions regarding appeals from decisions on
chargebacks.
Section 815.15 sets out provisions regarding parties with appeals rights.
The term "party of interest" is defined. This definition and the use of the
term "party of interest" in the rules provide a clear delineation between
"party" and "party of interest" as these terms are used in the rules.
Section 815.16 sets out provisions regarding the appealing of a determination
to the Appeal Tribunal.
Section 815.17 sets out provisions regarding the appealing of a decision
to the Commissioners.
Section 815.18 sets out the provisions regarding general rules for both
appeal levels.
Section 815.19 sets out provisions regarding hearings involving forfeiture
or cancellation of rights to benefits.
Section 815.20 sets out provisions regarding claims for benefits and specifies
the use of telephonic means for filing claims. The rule also deletes the in-person
claim filing for benefits and provides a list of the type of claimants who
are exempted from the work registration requirements.
Section 815.21 sets out the provisions regarding procedures for interstate
claims.
Section 815.22 sets out provisions regarding special claim situations.
Section 815.23 sets out provisions regarding records of work and wages
required by claimants.
Section 815.24 sets out provisions regarding notices of appeals rights.
Section 815.25 sets out provisions regarding the approval of training.
Section 815.26 sets out provisions regarding extended benefit period announcements.
Section 815.27 sets out provisions applicable to extended benefits.
Section 815.28 is a new rule that clarifies the work search requirements
for claimants.
Section 815.32 sets out the provisions regarding the issue of the timeliness
of appeals.
Subchapter C contains §§815.101-815.133 and sets out the provisions
relating to tax coverage, contributions or reimbursements, and appeals. The
new rules reflect a reorganization of the provisions of 40 TAC Chapter 815
relating to the Tax function. Subchapter C is numbered as beginning with §815.101
so that the number 100 is added to the old rule numbers relating to tax, to
simplify the transition into the new subchapter. For example, the rule formerly
numbered as §815.6 is now numbered as §815.106. Although the hearing
rule for the Tax function is numbered §815.113, the hearing process will
continue to be known as a Rule 13 hearing.
Specifically, the purposes of each of the sections in Subchapter C are
as follows.
Section 815.101 sets out the purpose of the subchapter.
Section 815.102 sets out the requirements regarding the determination of
mailing dates and the use of forms for Subchapter B.
Section 815.103 sets out a new rule relating to the use of Digital Signatures.
Section 815.104 sets out the provisions regarding remuneration other than
cash.
Section 815.105 sets out the provisions regarding expense reimbursements
Section 815.106 sets out the provisions regarding the records of employing
units.
Section 815.107 sets out the provisions regarding the required reports
and their due dates. The filing requirements of quarterly reports for reimbursing
employers and group accounts are clarified and the filing methods are expanded.
Section 815.108 sets out the provisions regarding signatures on reports
and forms.
Section 815.109 sets out the provisions regarding the payment of contributions
and reimbursements.
Section 815.111 sets out the provisions regarding the transfer of compensation
experience.
Section 815.112 sets out the provisions regarding refunds to employing
units.
Section 815.113 sets out the provisions regarding the Commission hearings
involving coverage and contributions or reimbursements.
Section 815.114 sets out provisions regarding an employer's elections to
cover multistate workers.
Section 815.115 sets out provisions regarding contribution and wage reports
covering seamen and seamen's wages paid under shipping articles.
Section 815.128 sets out provisions regarding group accounts.
Section 815.129 sets out provisions regarding surety bonds.
Section 815.130 sets out provisions regarding landmen contracts.
Section 815.131 sets out provisions regarding computations of contribution
rates.
Section 815.133 sets out provisions regarding employee staff leasing and
temporary help firms and has been reduced to two subsections to conform to
the Act.
Randy Townsend, Chief Financial Officer, has determined that for the first
five years the rules are in effect, the following statements will apply:
there are no additional estimated costs to the state and to local governments
expected as a result of enforcing or administering the rules;
there are no estimated reductions in costs to the state or to local governments
expected as a result of enforcing or administering the rules;
there are no estimated losses or increases in revenue to the state or to
local governments as a result of enforcing or administering the rules;
there are no foreseeable implications relating to costs or revenues to
the state or to local governments as a result of enforcing or administering
the rules; and
there are no anticipated costs to persons who are required to comply with
the rules as proposed.
Mr. Townsend has also determined that no significant cost to small businesses,
and no foreseeable adverse economic effect on small businesses (including
micro-businesses), would result, except for the following. The time required
to comply with each of the activities would take approximately 15 minutes
to two hours at the rates described as follows.
First, any costs resulting from the following rules are the result of statutory
requirements and/or federal and state due process requirements, not from the
rules as proposed:
§815.10 Appeals from Decisions on Chargebacks,
§815.15 Parties with Appeal Rights,
§815.16 Appeals to Appeal Tribunals from Determinations,
§815.17 Appeals to the Commissioners from Decisions,
§815.18 General Rules for Both Appeal Stages,
§815.19 Hearings Involving Forfeiture or Cancellation of Rights to
Benefits,
§815.21 Interstate Claims,
§815.22 Special Claim Situations,
§815.27 Provisions Applicable to Extended Benefits, and
§815.113 Commissioners' Hearings Involving Coverage and Contributions
or Reimbursements.
Second, minimal costs are estimated to result from the following rules
that may range up to $20 per hour for preparing, reviewing, drafting and filing
appropriate form(s), pursuant to §815.2(c), were the agency to prescribe
such form(s):
§815.2 Mailing Dates and Use of Forms (requiring in subsection (c)
that the Agency may require the furnishing of relevant information on an Agency-prescribed
form or forms);
§815.3 Addresses (requiring employers to keep addresses current and
notify the Agency of changes);
§815.20 Claim for Benefits (prescribing how claims may be protested);
§815.103 Digital Signatures (authorizing that a digital signature
may be used to authenticate a written electronic communication sent to the
agency);
§815.104 Remuneration Other than Cash (requiring that the cash value
of wages not consisting of cash be determined and reported); and
§815.108 Signatures on Reports and Forms (requiring signatures to
be notarized).
Section 815.20 Claim for Benefits requires the employer to prepare a written
protest at a rate ranging between $12-20 per hour for preparing, reviewing,
drafting, and filing the written protest.
Third, some costs, ranging from moderate to higher, may result from the
following rules that would each involve costs of $20 per hour for preparing,
reviewing, drafting, and filing; and regarding §§815.114 and 815.115,
requiring multistate applications and the preparation and submission of quarterly
contribution and wage reports covering seamen:
§815.106 Records of Employing Units,
§815.114 Employer Elections to Cover Multistate Workers, and
§815.115 Contribution and Wage Reports Covering Seamen and Seamen's
Wages Paid Under Shipping Articles.
Section 815.106 Records of Employing Units (which requires keeping accurate
records of employment) would involve costs in subsections (a), (b), and (c);
however, as these subject records are similarly required by the U.S. Internal
Revenue Service (IRS) (whether as a result of the Internal Revenue Code or
IRS regulations), the Agency concludes that the rules would impose no net
cost. Subsection (h) requires the furnishing of job descriptions upon request
by the Agency. If no job descriptions have been prepared, the Commission estimates
that a maximum of 16 hours at $20 per hour per job category may result; the
minimum cost for preparing such job descriptions would be minimal. If job
descriptions have already been prepared, then a photocopying cost of $6 per
hour is estimated. Subsection (i) requires that records prescribed in Section
815.106 be preserved for four years. As most of the records requirements are
similarly made by the IRS, little or no net increase from storage needs would
result from those records required by the Agency but not IRS. Subsection (g)
provides that when the appropriate records are not maintained or available
within Texas, that the employing unit (presumably a multistate business) shall
pay to the Agency expenses and costs incurred when a representative of the
Agency is required to go outside of the State to inspect or audit such records.
In such circumstances as this, in an extreme case, the Agency's estimate is
reimbursement of up to 40 hours at $40 per hour, and four nights lodging and
food at $80 per day, plus mileage at $ .28 per mile or air fare could result.
The Agency's analysis concludes that there would be no significant costs
of compliance for small businesses, with the possible exception of that resulting
from § 815.106(g), as discussed previously in this preamble. While Texas
Government Code §2006.002 does not define "adverse economic effect,"
if the definition of "adverse economic effect" is presumed to be, or include,
significant costs of compliance, then there may be adverse economic effects
from this provision.
It is important to note that while Texas Government Code §2006.002(a)
requires that an agency reduce an adverse effect on small business caused
by a rule it is considering adopting (if it is feasible to do so), agency
staff advises that (1) it is unlikely that a small business or micro-business
would be considered a multistate business subject to §815.106(g) reimbursement
costs; however, (2) it would not be feasible for the agency to exempt or except
a business from this requirement merely because it is a small business or
micro-business.
LaSha Barefield, Director of the Unemployment Insurance and Regulation
Division, has determined that for each year of the first five years that the
rules will be in effect, the public benefits expected as a result of adoption
of the proposed rules are to make the Unemployment Insurance and Tax functions
easier to access and provide a clearer set of rules for the public, and to
provide conformity with current business practices used to provide services
under the Act.
Mark Hughes, Director of Labor Market Information, has determined that
there is no foreseeable negative impact upon employment conditions in this
state as a result of these proposed rules.
The Commission will hold a public hearing on the proposed rules to receive
public comments from persons interested in the rules. Notice of this hearing
will appear in the
Texas Register
.
All official comments submitted to Steve Riley, Director of the Tax Department,
will be considered before the final rules are adopted. Comments or questions
regarding these proposed rules may be submitted in writing to Mr. Steve Riley,
Director of the Tax Department, Texas Workforce Commission, 101 East 15th
Street, Room 504, Austin, Texas, 78778-0001; via facsimile at (512) 463-2754;
or via e-mail at tax_dept@twc.state.tx.us.
40 TAC §§815.1 - 815.33
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Workforce Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeals are proposed under Texas Labor Code, §§301.061
and 302.062, which provide the Texas Workforce Commission with the authority
to adopt, amend, or repeal such rules as it deems necessary for the effective
administration of Commission services and activities.
The proposed repeals affect Texas Labor Code, Title 4.
§815.1.Definitions.
§815.2.Mailing Dates and Use of Forms.
§815.3.Addresses.
§815.4.Remuneration Other than Cash.
§815.5.Expense Reimbursements.
§815.6.Records of Employing Units.
§815.7.Reports Required and Their Due Dates.
§815.8.Signatures on Reports and Forms.
§815.9.Payment of Contributions and Reimbursements.
§815.10.Appeals from Decisions on Chargebacks.
§815.11.Transfer of Compensation Experience.
§815.12.Refunds to Employing Units.
§815.13.Commission Hearings Involving Coverage and Contributions or Reimbursements.
§815.14.Employer Elections To Cover Multistate Workers.
§815.15.Contribution and Wage Reports Covering Seamen and Seamen's Wages Paid Under Shipping Articles.
§815.16.Appeals to Appeal Tribunals from Determinations on Entitlement to Benefits.
§815.17.Appeals to the Commission from Decisions on Entitlement to Benefits.
§815.18.General Rules for Both Appeal Stages.
§815.19.Hearings Involving Forfeiture or Cancellation of Rights to Benefits.
§815.20.Claim for Benefits.
§815.21.Interstate Claims.
§815.22.Special Claim Situations.
§815.23.Record of Work and Wages Required of Claimants.
§815.24.Notice of Appeal Rights.
§815.25.Approval of Training.
§815.26.Extended Benefit Period Announcement.
§815.27.Provisions Applicable to Extended Benefits.
§815.28.Group Accounts.
§815.29.Surety Bond.
§815.30.Landmen Contracts.
§815.31.Computation of Contribution Rates.
§815.32.Timeliness.
§815.33.Employee Leasing.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State, on July 7, 2000.
TRD-200004727
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
40 TAC §§815.1 - 815.3
The rules are proposed under Texas Labor Code, §§301.061
and 302.062, which provide the Texas Workforce Commission with the authority
to adopt, amend, or repeal such rules as it deems necessary for the effective
administration of Commission services and activities.
The proposed rules affect Texas Labor Code, Title 4.
§815.1.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the statute or context in which the word or
phrase is used clearly indicates otherwise.
(1)
Act--The Texas Unemployment Compensation Act, Texas Labor
Code Annotated, Title 4, Subtitle A, as amended.
(2)
Additional claim--A notice of new unemployment filed at
the beginning of a second or subsequent series of claims within a benefit
year or within a period of eligibility when a break of one week or more has
occurred in the claim series with intervening employment. The employer named
on an additional claim will have 14 days from the date notice of the claim
is mailed to reply to the notice. The additional claim reopens a claim series
and is not a payable claim since it is not a claim for seven days of compensable
unemployment.
(3)
Agency-- The unit of state government that is presided
over by the Commission and under the direction of the executive director,
which operates the integrated workforce development system and administers
the unemployment compensation insurance program in this state as established
under Texas Labor Code, Chapter 301. It may also be referred to as the Texas
Workforce Commission.
(4)
Appeal--A submission by a party requesting the Agency or
the Commission to review a determination or decision that is adverse to that
party. The determination or decision must be appealable and pertain to entitlement
to unemployment benefits; chargeback as provided in the Act, Chapter 204;
fraud as provided in the Act, Chapter 214; tax coverage or contributions or
reimbursements. This definition does not grant rights to a party.
(5)
Base period with respect to an individual--The first four
consecutive completed calendar quarters within the last five completed calendar
quarters immediately preceding the first day of the individual's benefit year,
or any other alternate base period as allowed by the Act.
(6)
Benefit period--The period of seven consecutive calendar
days, ending at midnight on Saturday, with respect to which entitlement to
benefits is claimed, measured, computed, or determined.
(7)
Board--Local Workforce Development Board created pursuant
to Texas Government Code §2308.253 and certified by the Governor pursuant
to Texas Government Code §2308.261. This includes a Board when functioning
as the Local Workforce Investment Board as described in the Workforce Investment
Act §117 (29 U.S.C.A. §2832), including those functions required
of a Youth Council, as provided for under the Workforce Investment Act §117(i)
(also referred to as an LWDB).
(8)
Commission-- The three-member body of governance composed
of Governor-appointed members in which there is one representative of labor,
one representative of employers and one representative of the pubic as established
in Texas Labor Code §301.002, which includes the three member governing
body acting under the Act, Chapter 212, Subchapter D, and in Agency hearings
involving unemployment insurance issues regarding tax coverage, contributions
or reimbursements.
(9)
Day--A calendar day.
(10)
Landman--An individual who is qualified to do field work
in the purchasing of right-of-way and leases of mineral interests, record
searches, and related real property title determinations, and who is primarily
engaged in performing the field work.
(11)
Person--May include a corporation, organization, government
or governmental subdivision or agency, business trust, estate, trust, partnership,
association, and any other legal entity.
(12)
Reopened claim--The first claim filed following a break
in claim series during a benefit year which was caused by other than intervening
employment, i.e., illness, disqualification, unavailability, or failure to
report for any reason other than job attachment. The reopened claim reopens
a claim series and is not a payable claim since it is not a claim for seven
days of compensable unemployment.
(13)
Week--A period of seven consecutive calendar days ending
at midnight on Saturday.
§815.2.Mailing Dates and Use of Forms.
(a)
Except as otherwise provided in Subchapter C of this chapter,
when an individual or an employing unit reports or applies to the Agency in
writing upon an Agency form, for purposes of determining the date the writing
was sent, the following dates shall control, in the order listed:
(1)
the postmark date or the postal meter date (where there
is only one or the other);
(2)
the postmark date if there is both a postmark date and
a postal meter date, if they conflict;
(3)
the date the writing was delivered to a common carrier,
which date is equal to a postmark date;
(4)
a writing received in an envelope bearing no legible postmark,
postal meter date, or date of delivery to the common carrier shall be considered
to have been sent three business days before receipt by the Agency, or on
the date of the document, if the document date is less than three days earlier
than date of receipt; or
(5)
if the mailing envelope is lost after delivery to the Agency,
the date on the writing shall control. If the document is undated, the date
the writing was sent shall be three business days before receipt by the Agency,
subject to sworn testimony establishing an even earlier date.
(b)
Except as provided in Subchapter C of this chapter, the
date and time a writing is received by the Agency shall control when that
writing was sent by facsimile transmission (fax), or in an electronic form
approved by the Agency in writing.
(c)
Except as otherwise provided in Subchapter C of this chapter,
when the writing is not on an Agency form but furnishes information that is
sufficient to indicate clearly the purpose or intent of the writing, the controlling
date shall be determined as described in this section. However, the Agency
may require that the individual or employing unit furnish the necessary information
to the Agency in the manner and on a form or forms prescribed by the Agency
for the particular purpose.
§815.3.Addresses.
(a)
In this chapter, each employing unit which has or had individuals
in "employment" so defined in the Act shall notify the Agency of its correct
address and of any change in its correct address, and each employing unit
shall promptly notify the Agency of any change of address. Each individual
who is a claimant for benefits, who is liable to the Agency for an overpayment
pursuant to the Act, Chapter 212 or 214, or who is registered for work at
an Agency office, or public employment office, including a Board office, shall
promptly notify the Agency of any change of address.
(b)
In this chapter, a group account, as referred to in the
Act, §205.021, shall be treated as a single employing unit for the purposes
of this section and the Agency shall use the address of the group representative
as the official address of the group. The group representative shall notify
the Agency of the correct address and shall promptly notify the Agency of
any change of address.
(c)
In all transactions in which notice is required by the
Act or this chapter, the Agency shall notify the parties at the last known
address as reflected in the Agency records. However, when the Agency mails
a notice of an initial claim to the employer, the Agency shall use the address
of the employer for whom the claimant last worked, or if the employer has
more than one branch or division at different locations, the location of the
branch or division for which the claimant last worked, or a mailing address
designated by the employer in the Act, § 208.003.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on July 7, 2000.
TRD-200004724
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
40 TAC §§815.10, 815.15 - 815.28, 815.32
The rules are proposed under Texas Labor Code, §§301.061
and 302.062, which provide the Texas Workforce Commission with the authority
to adopt, amend, or repeal such rules as it deems necessary for the effective
administration of Commission services and activities.
The proposed rules affect Texas Labor Code, Title 4.
§815.10.Appeals from Decisions on Chargebacks.
Appeals from decisions on chargebacks under the Act, §§204.021-204.027,
shall be to the appeal tribunals and to the Commission within the time prescribed
by the Act. These appeals shall be heard in accordance with the provisions
of §815.16 of this chapter (relating to Appeals to Appeal Tribunals from
Determinations), §815.17 of this chapter (relating to Appeals to the
Commission from Decisions), and §815.18 of this chapter (relating to
General Rules for Both Appeal Stages), except to the extent that the referenced
sections are clearly inapplicable.
§815.15.Parties with Appeal Rights.
(a)
This section defines the circumstances under which a party
has appeal rights. For the purposes of appeals under this chapter, the term
"party of interest" shall be used to denote a party with appeal rights.
(b)
A claimant may file an appeal from an action of the Agency
and/or the Commission that affects the claimant's right to benefits subject
to this chapter and the Act.
(c)
An employer may file an appeal from a determination that
affects a claimant's entitlement to benefits if the employer is a party of
interest to the determination. Paragraphs (1)-(5) of this subsection are situations
in which the Agency shall treat an employer as a party of interest in a specific
proceeding. Only one employer shall be a party of interest to a proceeding.
(1)
An employer named as the last work on an initial claim
is a party of interest to a determination(s) ruling on the merits of the claimant's
separation and other specific issues raised by the employer regarding the
claimant's entitlement to benefits, if the employer filed a timely response
to notice of the claimant's initial claim.
(2)
An employer named as the last work on an additional or
continued claim is a party of interest to a determination(s) ruling on the
merits of that additional or continued claim separation, if the employer filed
a timely response to notice of the claimant's additional or continued claim
and:
(A)
was the employer named as the last work on the claimant's
initial claim and the employer filed a timely response to notice of the claimant's
initial claim; or
(B)
is a base period employer whose account has been ruled
subject to chargeback.
(3)
A reimbursing employer named as the last work on an additional
or continued claim is a party of interest to a determination(s) ruling on
the merits of that additional or continued claim separation, if the employer
filed a timely response to notice of the claimant's additional or continued
claim and:
(A)
was the employer named as the last work on the claimant's
initial claim and the employer filed a timely response to notice of the claimant's
initial claim; or
(B)
is a base period employer.
(4)
If an employer, during a claimant's benefits year, provides
the Agency with information that raises specific issues including, but not
limited to, a potential disqualification, ineligibility, or allegations of
fraud, each of which affects that claimant's entitlement to benefits, then
the employer shall be a party of interest to a determination ruling on the
merits of the specific issue raised by the employer as follows:
(A)
the employer is named as the last work on the claimant's
initial claim and the employer filed a timely response to notice of the claimant's
initial claim;
(B)
the employer is a base period taxed employer whose account
has been ruled subject to chargeback (even if that employer was named as the
last work on the claimant's initial claim and did not timely respond to notice
of the claimant's initial claim); or
(C)
the employer is a base period reimbursing employer.
(5)
An employer against whom a claimant has alleged entitlement
to additional base period wages shall be a party of interest to that issue.
§815.16.Appeals to Appeal Tribunals from Determinations.
A party of interest may appeal a determination to the appeal tribunal.
Appeals shall be in accordance with the terms of this section, §815.15
of this chapter (relating to Parties with Appeal Rights), §815.17 of
this chapter (relating to Appeals to the Commission from Decisions), and §815.18
of this chapter (relating to General Rules for Both Appeal Stages). As used
in this section and in §§815.17 and 815.18, the term "party" includes
a person's or individual's representative. In this section, a reference to
the term "supervisor of appeals" includes the supervisor's designee.
(1)
Presentation of appealed claims.
(A)
A party appealing from a determination made by an examiner
under the provisions of the Act, shall file an appeal by hand delivery, mail,
common carrier, facsimile (fax) transmission, or other method approved by
the Agency in writing. A written appeal that is sent to the Agency should
be addressed to the Texas Workforce Commission, 101 East 15th Street, Austin,
Texas, 78778-0001, or faxed to the number provided in the determination. A
written appeal may be hand delivered to the Texas Workforce Commission, 101
East 15th Street, Austin, Texas 78778-0001, a local office of the Agency,
an agent state, or an office of a Board. The appeal should identify the determination
being appealed, the basis for the appeal, the name of the party appealing,
and the date of the appeal. The provisions of §815.32 of this chapter
(relating to Timeliness) shall determine on what date the appeal was filed.
(B)
Upon the scheduling of a hearing on an appeal or a petition
to reopen, notice of the hearing shall be mailed to the parties at least five
days before the date of the hearing. The notice shall identify the decision
or determination appealed from and shall specify the time and date of the
hearing, the party appealing, and the issue to be heard. If the hearing is
an in-person hearing, the notice shall also specify the location of the hearing.
(2)
Disqualification of appeal tribunal. The essence of a fair
hearing lies in the impartiality of the appeal tribunal. An appeal tribunal
should be free not only of any personal interest or bias in the appeal before
it, but also of any reasonable suspicion of personal interest. No appeal tribunal
shall participate in the hearing of an appeal in which that tribunal has a
personal interest in the outcome of the appeal decision. The appeal tribunal
may withdraw from a hearing to avoid the appearance of impropriety or partiality.
Challenges to the impartiality of any appeal tribunal may be heard and decided
by the supervisor of appeals.
(3)
Hearing of appeal.
(A)
All hearings shall be conducted informally and in a manner
to ensure the substantial rights of the parties. All issues relevant to the
appeal shall be considered and ruled upon. The parties to an appeal before
an appeal tribunal may present evidence that may be material and relevant
as determined by an appeal tribunal. The appeal tribunal shall examine parties
and witnesses, if any, and may allow cross-examination to the extent the appeal
tribunal deems necessary to afford the parties due process. The appeal tribunal,
with or without notice to any of the parties, may take additional evidence
that it deems necessary, provided that a party shall be given an opportunity
to rebut the evidence if it is to be used against the party's interest.
(B)
The parties to an appeal, with the consent of the appeal
tribunal, may stipulate in writing the facts involved. The appeal tribunal
may decide the appeal on the basis of a stipulation or, in its discretion,
may set the appeal for hearing and take any additional evidence it deems necessary
to enable it to determine the appeal.
(C)
Hearings shall be conducted by telephone conference call
unless the supervisor of appeals determines that an in-person hearing is necessary
because a party with a physical impairment cannot effectively participate
by telephone, because the nature of the evidence to be presented makes a hearing
by telephone impractical, or because the supervisor of appeals otherwise determines
that an in-person hearing is necessary. The rules and procedures in this chapter
govern both in-person and telephone hearings. A party may request an in-person
hearing by informally contacting, orally or in writing or by any other reasonable
method of communication, the appeal tribunal or the supervisor of appeals
before the scheduled time of the hearing and presenting information to support
the request. The supervisor of appeals has the discretion to determine whether
the party's request for an in-person hearing will be granted.
(4)
Adjournment, continuance, and postponement of hearing.
(A)
The appeal tribunal shall use its best judgment to determine
when to grant a continuance or postponement of a hearing in order to secure
all the evidence that is necessary and to be fair to the parties.
(B)
Either prior to or during a hearing, an appeal tribunal,
on its own motion or on the motion of a party of interest, may continue, adjourn,
or postpone a hearing. The continuance, adjournment, or postponement shall
not be for the purpose of delaying the proceeding and may be granted due to
illness of the appellant, death in the immediate family of the appellant,
or a pending criminal prosecution of the appellant. A continuance, adjournment
or postponement may also be granted at the request of the appellant or appellee
when there is a need for an interpreter, religious observance, jury duty,
court appearance, active military duty, or other reasons approved by the supervisor
of appeals. Prior to the hearing, requests for a continuance or a postponement
of a hearing may be made informally, either orally or in writing, to the appeal
tribunal designated to hear the appeal or to the supervisor of appeals.
(5)
Reopening of hearing before appeal tribunal.
(A)
If a party fails to appear for a hearing, the appeal tribunal
may hear and record the evidence of the party present and the witnesses, if
any, and shall proceed to decide the appeal on the basis of the record unless
there appears to be good reason for continuing the hearing. A copy of the
decision shall be promptly mailed to the parties of interest with an explanation
of the manner in which, and time within which a request for reopening may
be submitted.
(B)
A party of interest to the appeal who fails to appear at
a hearing may, within 14 days from the date the decision is mailed, petition
for a new hearing before the appeal tribunal in the manner set out in subsection
(1)(A) of this section. The petition should identify the party requesting
the reopening, the applicable decision of the appeal tribunal, the date of
the petition, and explain the reason for the failure to appear. The provisions
of §815.32 of this chapter (relating to Timeliness) shall determine on
what date the petition was filed. The petition shall be granted if it appears
to the appeal tribunal that the petitioner has shown good cause for the petitioner's
failure to appear at the hearing. In the event that an appeal to the Commission
is filed before the filing of the petition for reopening by the appeal tribunal,
the appeal shall be referred to the Commission for review.
(C)
For purposes of this section, the term "appear" shall mean
participation by a party or a party's representative in the proceeding. Actions
that may be considered as participation include offering testimony, examining
witnesses, or presenting oral argument. If the hearing is a telephone hearing,
a party or a party's representative shall appear at a hearing by calling on
the date and at the time of the hearing and participating in the hearing proceedings.
If the hearing is an in-person hearing, a party or a party's representative
shall appear by being at the location of the hearing on the date and at the
time scheduled for the hearing and participating in the hearing proceedings.
Mere submission of written documents, whether sworn or unsworn, or observation
of the proceedings shall not constitute an appearance.
(6)
The determination of appeals.
(A)
As soon as possible following the conclusion of a hearing
of an appeal, the appeal tribunal shall issue its findings of fact and decision
with respect to the appeal. The decision shall be in writing and shall reflect
the name of the appeal tribunal who conducted the hearing and who rendered
the decision. In the decision, the appeal tribunal shall set forth findings
of fact and conclusions of law, with respect to the matters on appeal, and
the reasons for the decision. Copies of the decision shall be mailed by the
appeal tribunal to the parties of interest to the appeal. Upon request, courtesy
copies may be mailed to other parties to the appeal.
(B)
At any time during the 14-day period from the date a decision
on an appeal is mailed, unless a party of interest has already appealed to
the Commission, the appeal tribunal or the supervisor of appeals may assume
continuing jurisdiction over the appeal for the purpose of reconsidering the
issues on appeal and issuing a corrected decision. During the period in which
continuing jurisdiction is assumed, the appeal tribunal, after notice to the
parties, may take any additional evidence or secure any additional information
it deems necessary to issue a decision.
§815.17.Appeals to the Commission from Decisions .
(a)
The presentation of an appeal to the Commission.
(1)
A party of interest may appeal a decision of the Appeal
Tribunal. A party appealing from a decision of an appeal tribunal shall file
the appeal by hand delivery, mail, common carrier, facsimile (fax) transmission,
or other method approved by the Agency in writing. A written appeal that is
sent to the Agency should be addressed to the Texas Workforce Commission,
101 East 15th Street, Austin, Texas, 78778-0001, or faxed to the number provided
in the decision. A written appeal may be hand delivered to the Texas Workforce
Commission, 101 East 15th Street, Austin, Texas 78778-0001, a local office
of the Agency, an agent state, or an office of a Board. The appeal should
identify the decision of the appeal tribunal being appealed, the basis for
the appeal, the name of the party appealing, and the date of the appeal. The
provisions of §815.32 of this chapter (relating to Timeliness) shall
determine on what date the appeal was filed.
(2)
When an appeal to the Commission is filed, all evidence
and records pertaining to the appeal shall be submitted to the Commission
for its review.
(b)
Commission action may include one or more actions as described
in this subsection.
(1)
The Commission may, without further hearing, affirm, reverse
or modify any decision of an appeal tribunal on the basis of the record made
before the appeal tribunal.
(2)
The Commission may grant a further hearing on the matter
and notify the parties to appear before the Commission, or before a representative
of the Agency designated to hold hearings for the Commission, at a specified
time and place for the purpose of presenting additional evidence and arguments;
or the Commission may direct an appeal tribunal to take additional evidence
necessary for the proper disposition of the appeal. All hearings conducted
by the Commission, or before a representative of the Agency designated to
hold hearings for the Commission, shall be conducted in the manner prescribed
by §815.16 of this chapter (relating to Appeals to Appeal Tribunals from
Determinations). Upon completion of the taking of additional evidence, the
complete record involved in the appeal shall be returned to the Commission
for its decision.
(3)
The Commission may remand a case to the appeal tribunal
for the appeal tribunal to hold a de novo hearing. The appeal tribunal shall
set aside the prior appeal tribunal decision and issue a new decision. The
new decision shall be subject to all the provisions relating to appeals contained
in the Act, in this section, in §815.15 of this chapter (relating to
Parties with Appeal Rights), in §815.16 of this chapter (relating to
Appeals to Appeal Tribunals from Determinations), and in §815.18 of this
chapter (relating to General Rules for Both Appeal Stages), just as any other
appeal tribunal decision.
(c)
Assumption of jurisdiction on the Commission's own motion.
Within 14 days following the mailing of a decision of an appeal tribunal,
and in the absence of the filing of an appeal to the Commission by a party
of interest, the Commission may on its own motion acquire jurisdiction of
the appeal and act as though a party of interest had filed an appeal.
(d)
Cases removed from an appeal tribunal. The Commission may
remove to itself any appeal pending before an appeal tribunal. In that event,
the Commission may proceed to decide the case on the evidence previously submitted,
may schedule a hearing conducted by the Commission or its designee, or may
direct the appeal tribunal to take any additional evidence the Commission
deems necessary.
(e)
The determination of appeals.
(1)
The Commission shall render its decision with respect to
an appeal as soon as possible after reviewing the case. The decision shall
be in writing and shall reflect the names of the members of the Commission
who participated in the review.
(2)
If a decision of the Commission is not unanimous, the decision
of the majority shall control, but the minority member may file a dissent
from the decision.
(3)
A copy of the Commission's decision shall be mailed to
the parties.
(f)
Motions for rehearing.
(1)
A motion for rehearing may be filed by hand delivery, mail,
common carrier, facsimile (fax) transmission, or other method approved by
the Agency in writing. A motion for rehearing that is sent to the Agency should
be addressed to the Texas Workforce Commission, 101 East 15th Street, Austin,
Texas, 78778-0001, or faxed to the number provided in the decision. A written
motion may be hand delivered to the Texas Workforce Commission, 101 East 15th
Street, Austin, Texas 78778-0001, a local office of the Agency, an agency
state, or an office of a Board. The provisions of §815.32 of this chapter
(related to Timeliness) shall determine on what date the motion was filed.
(2)
A motion for rehearing shall not be granted unless each
of the following three criteria is met:
(A)
there is an offering of new evidence, which was not presented
at the appeal tribunal level;
(B)
there is a compelling reason why the evidence was not presented
earlier; and
(C)
there is a specific explanation of how consideration of
the evidence would change the outcome of the case.
(3)
Notwithstanding the provisions of paragraph (2) of this
subsection, a rehearing may be granted in the following two situations.
(A)
When a party of interest did not appear before the appeal
tribunal, nevertheless won at that level, and then received an adverse ruling
at the Commission level, the Commission may grant a rehearing to consider
whether there was good cause for the nonappearance. If good cause is found,
the rehearing shall address the merits of the case.
(B)
When a solely jurisdictional or procedural problem is not
detected or recognized until after the Commission decision has been issued,
the Commission may take appropriate action to correct the problem at the motion
for rehearing level.
(4)
The Commission shall deny a request for rehearing unless
it can be shown there are substantial reasons for the Commission to grant
the rehearing.
§815.18.General Rules for Both Appeal Stages.
This section shall be applicable to appeals both to the appeal tribunal
and to the Commission.
(1)
Issuance of subpoenas.
(A)
Subpoenas to compel the attendance of witnesses and the
production of records for any hearing of an appeal may be issued at the direction
of the Commission or its designee or an appeal tribunal. A subpoena may be
issued either at the request of a party or on the motion of the Commission
or its designee or the appeal tribunal. The party requesting a subpoena shall
state the nature of the information desired, including names of any witnesses
and the records that the requestor feels are necessary for the proper presentation
of the case. The request shall be granted only to the extent the records or
the testimony of the requested witnesses appears to be relevant to the issues
on appeal.
(B)
A witness subpoenaed to appear before an appeal tribunal,
the Commission or its designee, or a court may be paid a fee and mileage for
the appearance. The fee shall be $20 per day, and for miles necessarily traveled
to and returning from a hearing, the rate per mile shall be at the rate provided
for state employees in the State Appropriation Act, or as otherwise required
by law. The fee as provided in this section and the mileage shall be paid
from the unemployment compensation administration fund upon proper certification
of the appeal tribunal, the Commission or its designee, or the court, and
upon certification of the witness that the fees and mileage are just, true,
and unpaid.
(2)
Request for Agency records by a party. Upon the request
of a party to a proceeding, the Agency shall provide copies of all records
pertaining to that proceeding, except for records subject to privileges under
state or federal law or regulation. Other Agency records shall be produced
only if the party specifies the exact information desired, and the necessity
of the records to allow the party to properly present its claim; the production
of records shall be subject to confidentiality limitations and privileges
under state or federal law or regulation.
(3)
Representation before appeal tribunal and the Commission.
(A)
An individual who is a party to a proceeding may appear
before an appeal tribunal or the Commission or its designee.
(B)
A partnership may be represented by any of its members
or a duly authorized representative. Any corporation or association may be
represented by an officer or a duly authorized representative.
(C)
Any party may appear by an attorney at law or by any other
individual who is qualified to represent others.
(D)
The Commission or its designee or an appeal tribunal may
refuse to allow any individual to represent others in any proceeding before
it if the individual acts or speaks in an unethical manner or if the individual
intentionally and repeatedly fails to observe the provisions of the Act or
the rules of the Agency.
(4)
Removing a party from a proceeding. The Commission or its
designee or an appeal tribunal may, after an appropriate warning, expel from
any proceeding any individuals, whether or not a party, who fails to comport
themselves in a manner befitting the proceeding. The Commission or its designee
or an appeal tribunal may then continue with the proceeding, hear evidence,
and render a decision on the appeal.
(5)
Appeal Information. An appeal tribunal decision sent to
a party of interest, or the Commission's decision sent to a party, will include
or be accompanied by a notice specifying the appeal rights of the parties,
the procedure for filing further appeal, and the time period within which
an appeal shall be filed.
(6)
Retention of Decisions. Copies of decisions of the Commission
and of appeal tribunals shall be kept in accordance with the approved records
retention schedule.
§815.19.Hearings Involving Forfeiture or Cancellation of Rights to Benefits.
Hearings with respect to forfeiture or cancellation of benefits and
rights to benefits in situations potentially involving willful nondisclosure
or misrepresentation as provided in the Act, §214.003, shall be conducted
in a fair and impartial manner in accordance with the provisions of §815.15
of this chapter (relating to Parties with Appeal Rights), §815.16 of
this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17
of this chapter (relating to Appeals to the Commission from Decisions), and §815.18
of this chapter (relating to General Rules for Both Appeal Stages), except
to the extent that the sections are clearly inapplicable.
§815.20.Claim for Benefits.
An unemployed individual who has no current benefit year and who wishes
to claim benefits shall report to a representative of the Agency in a manner,
including telephonic or electronic means, that the Agency may approve, and
file a claim for benefits. Before receiving benefits a claimant shall register
for work with the public employment office, including Board offices, serving
the individual's area of residence, as provided in paragraphs (3) and (7)
of this section, unless exempt from the requirement.
(1)
In case of a mass layoff by an employer, if the last employing
unit involved makes an appropriate request, the Agency may accept, in lieu
of an initial claim from each individual, a list furnished by the last employer
of the individuals to be laid off and who wish to file initial claims for
benefits. The list shall reflect, with respect to each individual, all information
normally required on the initial claim by the Agency, except the reason for
separation. If the Agency approves the request, the listing may then be used
by the Agency as an initial claim for each individual on the list.
(2)
After an individual files a valid initial claim, which
establishes the claimant's benefit year, the claimant may, during the benefit
year, file subsequent continued claims, weekly or biweekly, by telephonic
means, facsimile (fax) transmission, mail, common carrier, or other means
as the Agency may approve in writing, but at intervals no less than periods
of seven consecutive days. A claimant shall file all claims by telephonic
means, in writing or orally, during the hours and days directed by Agency
representatives. If at any time during the benefit year, more than 30 days
have elapsed since the filing of the claimant's last claim, the claimant shall
file an additional or reopened claim for benefits as defined in §815.1
of this chapter (relating to Definitions) and shall comply with all eligibility
requirements for the claims. A claimant who exhausts the claimant's regular
benefits may file continued claims for extended benefits as referenced in §815.26
of this chapter (relating to Extended Benefit Period Announcement) in the
same manner in which the claimant filed claims for regular benefits, but the
claimant's claims for extended benefits may be for benefit periods subsequent
to the end of the claimant's benefit year.
(3)
An individual who files a claim for benefits shall comply
with all requirements of the public employment office in which the claimant
files an application for work that are necessary to establish a valid registration
for work in that public employment office. The claimant shall do the things
requested by an Agency representative, whether requested orally or in writing,
that are reasonably designed to inform the claimant of the claimant's rights
and responsibilities in filing a claim for benefits. The claimant shall also:
(A)
provide evidence, when requested to do so, to establish
the claimant's correct social security account number;
(B)
file all claims in the manner directed by the Agency, whether
on Agency-provided forms or by telephonic or other electronic means approved
by the Agency for claims purposes;
(C)
supply all information within the claimant's knowledge,
which is necessary to determine the claimant's rights to benefits under the
Act;
(D)
sign all provided claims forms personally for the claims
that are filed in person or by mail or common carrier; and
(E)
submit all claims filed by mail, common carrier, hand delivery
or by other means, including telephonic or electronic means, as instructed
by the Agency, in accordance with the terms of this section.
(4)
An individual may file a claim by mail, common carrier,
hand delivery, or by other means as the Agency may approve in writing in any
of the following circumstances:
(A)
conditions make it impracticable for the Agency representative
to take claims by telephonic or other approved means; or
(B)
the Agency finds that the claimant has good cause for failing
to file a claim by telephonic or other approved means.
(5)
If a claimant's answer to a question on a claim filed with
the Agency creates uncertainty about the claimant's credibility, or a lack
of understanding, or the claimant's record shows that the claimant previously
filed a fraudulent claim; then the claimant may be required to file written
claims on a Agency approved form in a manner prescribed by the Agency in writing.
A claimant required to file a claim under this subsection shall continue to
file the claim in the prescribed manner, until the Agency determines that
the reason no longer exists, directs otherwise in writing.
(6)
The following provisions shall apply to the disqualification
provisions of the Act, Chapter 207, Subchapter C, concerning disqualification
for benefits.
(A)
The term "employment" in the Act, Chapter 207, Subchapter
C, shall be interpreted and applied to mean employment as defined in the Act.
(B)
The disqualification to be imposed against an individual
who has left work to move with a spouse, as provided in the Act, §207.045(c),
shall be construed to mean both a benefits (money payments) and a benefit
period (time period) disqualification; and a disqualification shall be restricted
in its application to apply only to the range from six weeks to 25 weeks.
(C)
Agency employees are authorized to administer oaths to
claimants in an effort to verify that the re-qualifying requirements of the
Act, Chapter 207, Subchapter C, concerning employment or earnings, have been
satisfied.
(D)
An employer identified as the employer by whom the claimant
was employed, for purposes of satisfying the re-qualifying requirements of
the Act, Chapter 207, Subchapter C, shall be afforded 14 days within which
to respond to notice by the Agency of the filing of an additional claim by
the claimant.
(E)
In order to satisfy the requirement of the Act, Chapter
207, Subchapter C, concerning returning to employment and working for six
weeks, a "work week" shall be defined as a consecutive seven-day period during
which the claimant has worked at least 30 hours.
(F)
Disqualifying separations, new benefit year, and extended
benefit period.
(i)
A claimant filing an initial claim, continued claim or
additional claim shall be disqualified from receiving benefits if the separation
from the claimant's last work is a disqualifying separation as defined in
the Act, Chapter 207.
(ii)
If a work separation in a previous benefit year is the
last separation prior to a claimant's filing an initial claim that creates
a new benefit year, then that work separation may result in a disqualification
in the new benefit year in accordance with the provisions of the Act, Chapter
207.
(iii)
A disqualification resulting from a work separation in
a benefit year shall continue during the extended benefit period until:
(I)
the extended benefit period is terminated;
(II)
the claimant qualifies to file a new initial claim; or
(III)
the claimant re-qualifies in accordance with the provisions
of the Act, Chapter 207, under which the disqualification was imposed.
(7)
A claimant shall be eligible to receive benefits with respect
to any week only if the individual demonstrates the availability for work
required by the Act, §207.021(a)(4), by participating in re-employment
services, including, but not limited to, job search assistance services, if
the claimant has been determined to be likely to exhaust regular benefits
and needs re-employment services pursuant to a profiling system established
by the Agency.
(8)
The following categories of claimants are exempt from the
requirement to register for work:
(A)
individuals on temporary layoff with a definite date to
return to work;
(B)
members in good standing of unions that maintain a hiring
hall; and
(C)
individuals participating in a Shared Work plan as defined
in the Act, Chapter 215.
(9)
Withholding From Benefits for Federal Income Tax.
(A)
An individual filing a new claim for unemployment compensation
shall, at the time of filing the claim, be advised that:
(i)
unemployment compensation is subject to federal, state
and local income tax;
(ii)
requirements exist pertaining to estimated tax payments;
(iii)
the individual may elect to have Federal income tax deducted
and withheld from the individual's payment of unemployment compensation at
the amount specified in the Federal Internal Revenue Code; and
(iv)
the individual shall be permitted to change a previously
elected withholding status.
(B)
Amounts deducted and withheld from unemployment compensation
shall remain in the unemployment fund until transferred to the Federal taxing
authority as a payment of income tax.
(C)
The Agency shall follow all procedures specified by the
United States Department of Labor and the Federal Internal Revenue Service
pertaining to the deducting and withholding of income tax.
(D)
Amounts shall be deducted and withheld under this section
only after amounts are deducted and withheld under any other provisions of
the Texas Unemployment Compensation Act.
(10)
An employer's protest to an initial, additional or continued
claim made in accordance with the Act, §208.004, may be delivered by
mail, common carrier, facsimile (fax), or other means approved by the Agency
in writing and as prescribed in the Agency's notice of claim form.
§815.21.Interstate Claims.
This section shall govern the Agency in its administrative cooperation
with other states adopting a similar rule or regulation for the payment of
benefits to interstate claimants, any provision of any other rule to the contrary
notwithstanding.
(1)
Definitions. As used in this section, the following words
and terms shall have the following meanings, unless the context clearly indicates
otherwise.
(A)
Agent state--Any state from which or through which an individual
files a claim for benefits from another state.
(B)
Benefits--The compensation payable to an individual with
respect to the individual's unemployment, under the unemployment insurance
law of any state.
(C)
Interstate benefit payment plan--The plan approved by the
Interstate Conference of Employment Security Agencies under which benefits
shall be payable to unemployed individuals absent from the state (or states)
in which benefit credits have been accumulated.
(D)
Interstate claimant--An individual who claims benefits
under the unemployment insurance law of one or more liable states through
the facilities of an agent state, or directly with the liable state. The term
"interstate claimant" shall not include any individual who customarily commutes
from a residence in an agent state to work in a liable state unless the Agency
finds that this exclusion would create undue hardship on the claimants in
specified areas.
(E)
Liable state--Any state against which an individual files,
through another state, a claim for benefits.
(F)
State--Includes the District of Columbia, Puerto Rico,
and the Virgin Islands.
(G)
Week of unemployment--Includes any week of unemployment
as defined in the law of the liable state from which benefits with respect
to the week are claimed.
(2)
Registration for work.
(A)
The agent state shall register for work each claimant who
files through the agent state, or upon notification of a claim filed directly
with the liable state, as required by the law, regulations, and procedures
of the agent state. The registration shall be accepted as meeting the registration
requirements of the liable state.
(B)
Each agent state shall duly report, to the liable state
in question, each interstate claimant who fails to meet the registration/reemployment
assistance reporting requirements of the agent state.
(3)
Benefit rights of interstate claimants.
(A)
If a claimant files a claim against any state, and it is
determined by the state that the claimant has available benefit credits in
the state, then claims shall be filed only against the state as long as benefit
credits are available in that state. Thereafter, the claimant may file claims
against any other state in which there are available benefit credits.
(B)
For the purposes of this section, benefit credits shall
be deemed to be unavailable whenever benefits have been exhausted, terminated,
or postponed for an indefinite period or for the entire period in which benefits
would otherwise be payable, or whenever benefits are affected by the applications
of a seasonal restriction.
(4)
Claims for benefits.
(A)
Claims for benefits or waiting-period credit filed by an
interstate claimant directly with the liable state shall be filed in accordance
with the liable state's procedures. Claims shall be filed in accordance with
the type of week in use in the agent state. Any adjustments required to fit
the type of week used by the liable state shall be made by the liable state
on the basis of consecutive claims filed.
(B)
Claims shall be filed in accordance with the agent state's
regulations for intrastate claims in the local employment offices, affiliated
sites, one-stop centers, or at an itinerant service point or by mail, common
carrier or by other means, including telephonic or electronic means, as the
Agency may approve.
(i)
With respect to claims for weeks of unemployment in which
an individual was not working for the individual's regular employer, the liable
state shall, under circumstances which it considers good cause, accept a continued
claim filed up to one week or one reporting period late. If a claimant files
more than one reporting period late, an initial interstate claim shall be
used to begin a claim series, and no continued claim for a past period shall
be accepted.
(ii)
With respect to weeks of unemployment during which an
individual is attached to the individual's regular employer, the liable state
shall accept any claim which is filed within the time limit applicable to
the claims under the law of the agent state.
(5)
Determination of claims.
(A)
The agent state shall, in connection with each claim filed
by an interstate claimant, ascertain and report to the liable state in question
the facts relating to the claimant's availability for work and eligibility
for benefits as are readily determinable in and by the agent state.
(B)
The agent state's responsibility and authority in connection
with the determination of interstate claims shall be limited to investigation
and reporting of relevant facts and the reporting of relevant facts pertaining
to each claimant's failure to register for work or report for reemployment
assistance as required by the agent state. The agent state shall not refuse
to take an interstate claim.
(6)
Appellate procedure.
(A)
The agent state shall afford all reasonable cooperation
in the taking of evidence and the holding of hearings in connection with appealed
interstate benefit claims.
(B)
With respect to the time limits imposed by the law of a
liable state other than Texas, upon the filing of an appeal in connection
with a disputed claim, whether or not the appeal is timely shall be determined
by the liable state by reference to that state's law, regulations, or policies
and practices. In interstate appeals in which Texas is the liable state, whether
or not the appeal is timely shall be determined by reference to relevant provisions
of the Texas Unemployment Compensation Act and current Agency policies and
precedent decisions applicable to intrastate appeals.
(C)
The liable state shall conduct hearings in connection with
appealed interstate benefit claims. The liable state may contact the agent
state for assistance in special circumstances.
(7)
Canadian claims. This section shall apply in all its provisions
to claims taken in and for Canada.
(8)
Notification of interstate claim. The liable state shall
notify the agent state of each initial claim, reopened file, claim transferred
to interstate status, and each week claim filed from the agent state using
uniform procedures and record format pursuant to the Interstate Benefit Payment
Plan.
§815.22.Special Claim Situations.
(a)
For adequate cause shown, the Agency may permit retroactive
or backdated work registrations and may permit the filing of retroactive or
backdated work registrations and may permit the filing of retroactive or backdated
claims in order to prevent hardship or injustice. The work registrations and
claims shall have the same effect as though prepared and filed on the earlier
date. In the event a request for backdating a claim is approved prior to the
filing of the claim, a claimant must file the backdated claim within 60 days
of the date the backdating was authorized in order for the claim to be valid.
(b)
On a finding by the executive director, or the executive
director's designee, that a foreign conflict creates an emergency situation
which prevents the filing of claims in accordance with all of the provisions
of §815.20 of this chapter (relating to Claim for Benefits) and that
the emergency is likely to continue for an extended period, the executive
director may permit the filing and payment of claims not meeting all of the
requirements of §815.20 of this chapter (relating to Claim for Benefits).
However, those requirements may be relaxed only to the extent that the executive
director finds necessary to prevent hardship or injustice that would otherwise
be caused by the emergency.
§815.23.Record of Work and Wages Required of Claimants.
An individual who has registered, in accordance with §815.20 of
this chapter (relating to Claim for Benefits), for work and filed a claim
shall keep an accurate record of any work which the claimant has performed
during any day within a benefit period regardless of whether the work constitutes
"employment" as defined in the Act. The record shall include the names and
addresses of the individuals or persons for whom the claimant worked, the
total remuneration earned, and the number of hours worked during the benefit
period. All claimants shall provide the information at the time a continued
or additional claim is filed, in the manner which the Agency may direct.
§815.24.Notice of Appeal Rights.
Each notice of determination which the Agency is required to furnish
to the parties shall, in addition to stating the decision and its reasons,
include a notice specifying the party's appeal rights. The notice of appeal
rights shall state clearly the place and manner for taking an appeal from
the determination and the period within which an appeal may be taken. This
section does not grant appeal rights to a party that is not a party of interest.
§815.25.Approval of Training.
An individual shall be in training with the approval of the Agency
if the Agency has authorized the training for the individual and the individual
is attending the training course on a full-time basis and the Agency finds
that:
(1)
the individual can reasonably be expected to complete the
training course successfully, and to find and accept work;
(2)
the individual has attended the training course full time
during the given training week or had good cause for the individual's failure
to do so, and is making satisfactory progress in the course; and
(3)
the training facility and/or the individual agrees to,
and does, furnish evidence satisfactory to the Agency that the individual
is regularly attending the training course and is satisfactorily performing
assignments as a trainee.
§815.26.Extended Benefit Period Announcement.
When the Agency receives official notice or determines that an extended
benefit period will become effective in this state, or that an extended benefit
period in effect in this state will be terminated, the Agency shall make an
announcement of this fact through the available news media. The announcement
shall contain:
(1)
the beginning or ending date of the extended benefit period,
whichever is appropriate;
(2)
in the case of an extended benefit period that is about
to begin, a statement of who may be potential beneficiaries of extended benefits
during the extended benefit period; and
(3)
a statement to the effect that any individual who wishes
to file a claim for extended benefits shall file the claim in the same manner
in which the claimant would file a claim for regular benefits, except that
the claimant may file retroactive claims for extended benefits during the
first 21 days after the beginning date of the extended benefit period or during
the first 21 days after the date of the announcement of the extended benefit
period, whichever is later.
§815.27.Provisions Applicable to Extended Benefits.
(a)
Except where the result would be inconsistent with the
purpose of the provisions for extended benefits in the Act, the terms and
conditions of the Act and the rules in this chapter, which apply to claims
for, and payment of, regular benefits shall apply to claims for, and payment
of extended benefits, including, but not limited to:
(1)
claim filing, claimant reporting, and registration for
work;
(2)
information to claimants;
(3)
notices to claimants and to employers, as appropriate,
including notice to claimants as to the amount and duration of extended benefits
for which they qualify;
(4)
determinations, redeterminations, appeals, and reviews;
(5)
the week for which benefits are paid;
(6)
ability to work, availability for work, and search for
work; and
(7)
disqualifications, except for the provisions of the Act,
Chapter 209, Subchapter C, concerning failure to accept any offer of suitable
work or failure to apply for any suitable work when so directed by the Agency.
(b)
Provisions of the Act which are not applicable to payment
of extended benefits are those relating to:
(1)
the waiting period;
(2)
monetary qualifying requirements; and
(3)
computation of weekly and total regular benefits.
§815.28.Work Search Requirements.
A claimant shall be considered available for work when the claimant
has made a reasonable search for suitable work. Mere registration for work
does not establish that the claimant is making a reasonable search for suitable
work. It is essential that the claimant make a personal and diligent search
for work. The reasonableness of a search for work will, in part, depend upon
the employment opportunities in the claimant's labor market area. A work search
that may be appropriate in a labor market area with limited opportunities
may be totally unacceptable in an area with greater opportunities. Unreasonable
limitations by a claimant as to salary, hours, or conditions of work indicate
that a claimant is not making a reasonable search for suitable work. The Agency
expects each claimant to act in the same manner as a prudent person who is
out of work and seeking work.
§815.32.Timeliness.
(a)
Unless otherwise specified in this chapter, appeals time
frames are generally determined within these guidelines:
(1)
as established in the Texas Unemployment Compensation Act;
and
(2)
are extended one working day following a deadline which
falls on a weekend, an official state holiday, a state holiday for which minimal
staffing is required, or a federal holiday.
(b)
Presumption of receipt. A document mailed to a party is
presumed to be received if the document was mailed to the complete, correct
address of record unless:
(1)
there is tangible evidence of nondelivery, such as the
document being returned to the Agency by the United States Postal Service;
or
(2)
credible and persuasive evidence is submitted to the Agency
to establish nondelivery, delayed delivery, or misdelivery of the document.
(c)
Address for proper mailing.
(1)
For a claimant, the proper address is the address given
by the claimant to the Agency subject to later changes given by the claimant
to the Agency.
(2)
For an employer, the proper address is determined under §815.3
of this chapter (relating to Addresses) unless the employer has specifically
requested a mailing address change in a protest, appeal, or other correspondence,
or at a hearing.
(3)
For governmental employers, the group account address shall
be used, if applicable.
(4)
Mailing of notice to a party representative, whether or
not an attorney, is required to bind parties to timeliness rules.
(5)
If a party provides the Agency with the party's own incorrect
mailing address, an Agency mailing to that address shall be a proper mailing,
even if there is proof that the document was never received by the party.
(6)
The Agency is not responsible for effectuating an address
change when it is listed in correspondence or merely listed by a party on
an appeal filed in person, unless the Agency is specifically directed by the
party to mail subsequent notices to the address.
(7)
If the Agency improperly addresses a document, the time
frame for filing an appeal shall begin to run as of the actual date of receipt
by the party, even if received by the party within the statutory appeal time
frame. However, this subsection does not apply if the party provided an incorrect
address under subsection (c)(5) of this section.
(8)
Addresses shall be positively verified by hearing officers,
who shall also explain to parties the importance of the address being correct
and the fact that subsequent appeal deadlines run from the date of mailing,
not the date of receipt by the party.
(d)
Receipt Date.
(1)
Receipt date is date of receipt at the earliest of an Agency,
agent state, or Board office.
(2)
If an appeal is received at an agent state or a Board office(s),
but the appeal is not dated by the receiving entity, and is forwarded to the
appeals (or interstate) processing unit and is dated by that unit, then the
appeal date shall be set at three business days earlier than receipt in appeals
(or interstate).
(e)
Appeal Date.
(1)
The appeal date for a document received via United States
Postal Service shall be the postmark date or the postal meter date (where
there is only one or the other); but where there is both a postmark date and
a postal meter date and they conflict, the postmark date controls.
(2)
The date a document is delivered to a common carrier (such
as Federal Express, Purolator, or other common carrier) controls as the date
the appeal is perfected. (Delivery to carrier is equivalent to delivery to
United States Postal Service; date of delivery to carrier is equivalent to
postmark date.)
(3)
An appeal received in an envelope bearing no legible postmark
or postal meter date shall be considered to be perfected three business days
before receipt by the Agency, or on the date of the document, if the document
date is less than three days earlier than date of receipt.
(4)
If the mailing envelope is lost after delivery to the Agency,
appeal document date shall control. If the document is undated, appeal date
shall be three business days before receipt by the Agency, subject to sworn
testimony establishing an even earlier date.
(5)
If a determination, decision or other written material
provides for an appeal by fax, or in an electronic form approved by the Agency
in writing, then the appeal date shall be the date and time the appeal is
received by the Agency.
(f)
Sworn testimony can establish a date for an appeal being
perfected, which is earlier than the dates established under subsections (d)
and (e) of this section. Only in the face of extremely credible evidence shall
a party be allowed to establish an appeal date earlier than a postal meter
date, or the date of the document itself. When a party alleges filing an appeal
which the Agency has never received, the party must present credible and persuasive
testimony of timely filing corroborated by testimony of a disinterested party
and/or physical evidence specifically linked to the appeal in question.
(g)
Credible and persuasive testimony subject to cross-examination
establishing timeliness allows the Agency or the appeal tribunal to rule on
the merits.
(h)
If a party submits an address change to the Agency during
the appeal period (but after the Agency document was mailed to the old address),
address change date shall control and shall be considered as the date the
appeal was perfected.
(i)
Exceptions. The substantive nature of certain cases causes,
or creates, exceptions to the general timeliness rules, even where notice
is proper or response is clearly late.
(1)
Cases fitting into the wage credits/validity of claim category
present a one-time exception to the timeliness rules. A late appeal to the
appeal tribunal on the issues, if within the same benefit year, shall be deemed
timely. However, once a decision has been issued by the appeal tribunal, the
appeal time limits in the Act, Chapter 212, shall apply.
(2)
In cases dealing with the imposition of fraud and forfeiture
provisions of the Act, §214.003, there is a one-time exception at the
appeal tribunal stage, if:
(A)
the claimant is out of claim status; and
(B)
if the claimant has moved.
(3)
In cases where there is a continuing ineligibility or condition
and there is a late appeal, the appeal tribunal or the Commission can assume
jurisdiction 14 days before the late appeal, and rule on the merits if the
facts so warrant.
(4)
If a chargeback ruling is required, but is omitted, the
determination or decision does not become final for the employer; it does
become final for the claimant.
(5)
In a case where it is ultimately determined that there
has been no separation from employment, all rulings are void and all rulings
can be set aside at any time.
(6)
When there has been a ruling protecting an employer's account
on a separation in one benefit year, the employer is not required to timely
protest or appeal a ruling on the same separation in a subsequent year.
(7)
Timeliness sanctions shall not apply when an Agency representative
or a representative of a Board or an agent state representative has given
misleading information on appeal rights to a party, if the party:
(A)
specifically establishes how the party was misled; or
(B)
specifically establishes what the party was told that was
misleading and, if possible, by whom the party was misled.
(8)
There is no good cause exception to the timeliness rules.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State, on July 7, 2000.
TRD-200004725
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
40 TAC §§815.101 - 815.109, 815.111 - 815.115, 815.128 - 815.131, 815.133
The rules are proposed under Texas Labor Code, §§301.061
and 302.062, which provide the Texas Workforce Commission with the authority
to adopt, amend, or repeal such rules as it deems necessary for the effective
administration of Commission services and activities.
The proposed rules affect Texas Labor Code, Title 4.
§815.101.Scope.
The purpose of this subchapter is to set forth the provisions governing
employers' interaction with the Tax Department as provided by the Act. The
rules contained in this subchapter may be applicable to an Unemployment Insurance
function, except that to the extent of any conflict, the program-specific
rule will govern.
§815.102.Mailing Dates and Use of Forms.
(a)
Whenever an individual or an employing unit report or apply
to the Agency in writing upon an Agency form, for purposes of determining
the date the writing is submitted, the following dates shall control, in the
order listed:
(1)
the United States Postal Service postmark date, if legible;
(2)
the postal meter date, if legible;
(3)
a writing received in an envelope without a legible postmark
or postal meter date shall be considered to have been sent three business
days before receipt by the Agency, or on the date of the writing, if the date
of the writing is less than three days earlier than date of receipt; or
(4)
if the mailing envelope is lost after delivery to the Agency,
the date on the writing shall control. If the writing is undated, the date
the writing was sent shall be three business days before receipt by the Agency,
subject to sworn testimony establishing the mailing date.
(b)
The date the payment of contributions or reimbursements
are received shall be determined in accordance with the provisions of this
section.
(c)
If the writing was filed in an electronic form approved
by the Agency in writing, the date and time stamp the transmission was received
by the Agency shall establish the mailing date.
(d)
If delivered by a common carrier (i.e. Federal Express,
Purolator, or other common carrier) the receipt date shall be the date the
writing is delivered to the Common Carrier.
(e)
If delivered in person, the date the writing is delivered
to the Agency's Central Tax Office in Austin or any Agency Tax Office located
throughout the state.
§815.103.Digital Signatures.
(a)
Within this subchapter a digital signature may be used
to authenticate a written electronic communication sent to the Agency if it
complies with the following factors:
(1)
it is unique to the person or individual using it;
(2)
it is capable of independent verification;
(3)
it is under the sole control of the person or individual
using it; and
(4)
it is transmitted in a manner that shall make it infeasible
to change the data in the communication without invalidating the digital signature.
(b)
In this section, digital signature means an electronic
identifier intended by the person or individual using it to have the same
force and effect as the use of a manual signature.
§815.104.Remuneration Other than Cash.
(a)
If any part of an individual's wages is received in any
medium other than cash, the reasonable cash value of the remuneration other
than cash shall be deemed for all purposes of the Act to be either:
(1)
the amount which is agreed upon between the employing unit
and the individual if:
(A)
the terms of the agreement are reported to the Agency;
and
(B)
the Agency determines that the agreed value or amount is
reasonable; or
(2)
the cash value is established to the satisfaction of the
Agency.
(b)
If the Agency determines that the amount agreed upon is
unreasonable, or if the employing unit and the individual fail to agree upon
an amount; or if the employing unit fails to report the terms of an agreement
to the Agency, and the employing unit fails to show the cash value of the
noncash remuneration prior to the due date of contributions with respect to
the wages, the Agency shall fix an amount or value after considering all available
information and evidence; and the amount fixed by the Agency shall be deemed
for all purposes of the Act to be the cash value of the wages received in
any medium other than cash.
§815.105.Expense Reimbursements.
Allowances, advances of reimbursements paid to an individual in employment
for traveling, and other bona fide expenses incurred or reasonably expected
to be incurred in the business of the individual's employer shall not be treated
as wages, provided a separate payment is made for the expenses, or specific
accounting records are kept indicating the separate amounts where a single
payment covers both wages and expenses combined, and provided further that
the amount of payments for expenses excluded from wages shall not exceed the
amount allowable as deductible expenses by income tax regulations under the
United States Internal Revenue Code, 26 U.S.C.A. §62(2) and §162(a)(2).
§815.106.Records of Employing Units.
(a)
Each employing unit shall keep true and accurate employment
and payroll records, that shall include, , the name and correct address of
the employing unit, and the name and address of each branch or division or
establishment operated, owned, or maintained by the employing unit at different
locations in Texas, and the following information for each and every individual
performing services for it:
(1)
the individual's name, address, and social security number;
(2)
the dates on which the individual performed services for
the employing unit and the state or states in which the services were performed;
(3)
the amount of wages paid to the individual for each separate
payroll period, date of payment of the wages, and amounts or remuneration
paid to the individual for each separate payroll period other than "wages,"
as defined in the Act; and
(4)
whether, during any payroll period the individual worked
less than full time, and if so, the hours and dates worked.
(b)
Each employing unit shall keep, in addition to the records
required by subsection (a) of this section, the records that shall establish
and reflect the ownership and any changes of ownership of the employing unit,
the correct address where the headquarters of the employing unit is located,
and the correct mailing address of the employing unit. The records shall also
show clearly the address at which the records are available for inspection
or audit by representatives of the Agency. The records shall show the addresses
of owners of the employing unit; or in the event the employing unit is a corporation
or an unincorporated organization, the records shall show the addresses of
directors, officers, and any individuals on whom subpoenas, legal processes,
or citations may be served in Texas. In the event the employing unit is a
member of a group account, the records shall show the address of the group
representative.
(c)
Wages paid for services excluded from the definition of
"employment" under the Act shall be separately reflected in the employing
unit's records so as to show the time of the service and remuneration for
the service that is separate from taxable wages. With respect to pay periods
in which an individual performs services excluded from the term "employment"
as well as service which is "employment," the employing unit's record shall
reflect the hours spent in the excluded service and the hours spent in "employment."
If any remuneration other than monetary wages is paid to or is received by
an individual with respect to services performed by the individual for the
employer, the record shall show the total amount of cash wages and the cash
value of any other remuneration.
(d)
Each reimbursing employer (including the individual component
members comprising a group account) shall maintain the records prescribed
in this section.
(e)
Each governmental employer (including the independent component
employers comprising the group account) shall maintain the records prescribed
in this section.
(f)
Component members of a group account shall furnish payroll
and other information necessary to the group representative for the representative
to prepare consolidated reports for the group.
(g)
All records shall be kept and maintained as to establish
clearly the correctness of all reports which the employing unit is required
to file with the Agency and shall be readily accessible to authorized representatives
of the Agency within the geographical boundaries of the State of Texas; and
in the event the records are not maintained or are not available within Texas,
the employing unit shall pay to the Agency the expenses and costs incurred
when a representative of the Agency is required to go outside the State of
Texas to inspect or audit the employing unit's records.
(h)
Each employing unit, upon request by the Agency, shall
furnish a job description of duties performed by any individual or group of
individuals who are performing or have performed services for the employing
unit.
(i)
The records prescribed by this subchapter and the Act shall
be preserved for four years.
§815.107.Reports Required and Their Due Dates.
(a)
Each employing unit shall submit to the Agency a status
report in a manner prescribed by the Agency within ten days from the date
upon which the employing unit becomes subject to the Act as an employer thereunder,
and shall furnish all facts necessary to a determination of the taxable status
of the employing unit. Each employing unit shall likewise submit additional
status reports at any time upon the request of the Agency and shall, if requested,
furnish to the Agency evidence to establish the correctness of information
contained in its status reports. Any employing unit which commences or enters
into business or which acquires another business or substantially all the
assets thereof in the State of Texas shall submit a new status report to the
Agency within ten days of the date on which it made the entry or the acquisition.
(b)
Each taxed employer shall submit to the Agency, within
the month during which contributions for any period become due, and not later
than the date on which contributions are required to be paid to the Agency,
an employer's quarterly report showing the total amount of remuneration paid
during the preceding calendar quarter for employment (or showing that no remuneration
was paid during the quarter), showing the total amount of wages (as defined
in the Act, §§201.081 and 201.082) paid during the quarter for employment,
and showing the amount of wages for benefit wage credits (as defined in the
Act, §207.004) paid to each individual during the quarter for employment
and the social security account number and name of each individual to whom
the wages were paid, and showing other information called for on the employer's
quarterly report. The employer's quarterly report shall be made on Agency
forms printed by the Agency, or by magnetic or electronic media using a format
prescribed by this Agency, or in any other manner approved and prescribed
by the Agency in writing, and shall contain all facts and information necessary
to a determination of the amount of contributions due. The filing of the report
on magnetic or electronic media, or in any other manner approved and prescribed
by the Agency in writing, shall be required to the extent provided below.
(c)
Each reimbursing employer and the group representative
of a group account shall submit an employer's quarterly report during the
month following each calendar quarter and shall furnish information that is
applicable to the reimbursing employer or the group account, showing the total
amount of remuneration paid during the preceding calendar quarter for employment
(or showing that no remuneration was paid during the quarter), the name, social
security and account number and total amount of wages paid to each individual,
and other information that is applicable to the reimbursing employer or group
accounts. The employer's quarterly report shall be made on Agency forms printed
by the Agency, or by magnetic or electronic media using a format prescribed
by this Agency, or in any other manner approved and prescribed by the Agency
in writing, and shall contain all facts and information necessary to make
a determination of the amount of reimbursements due. The filing of the report
on magnetic or electronic media, or in any other manner approved and prescribed
by the Agency in writing, shall be required to the extent provided in subsections
(d)-(h) of this section.
(d)
Each employer which has employees whose benefits are to
be financed by the federal government shall submit a separate quarterly report
furnishing the names of the employees, their social security numbers, and
the wages paid to each. The report shall be submitted the month following
each calendar quarter.
(e)
All forms and magnetic or electronic media formats for
the filing of reports provided for in this section shall be furnished by the
Agency to each employing unit, upon application being made, and all reports
shall be filed upon the forms or by magnetic or electronic media formats furnished
by the Agency. Failure to receive notice regarding the reports shall not,
however, relieve the employing unit of the responsibility of filing the reports
upon the date the reports are due. Employers who have to report 250 or more
employees in any calendar quarter, as defined in the Act, §207.004, shall
file their quarterly wages on magnetic or electronic media using a format
prescribed by the Agency. A magnetic or electronic media wage report may contain
information from more than one employer. Employers with less than 250 employees
may elect to use magnetic or electronic media reporting.
(f)
The Agency may require the furnishing of additional information
as it deems necessary to the proper administration of the Act.
(g)
Unless otherwise provided in this subchapter, any report
or form shall be completed and filed with the Agency within ten days after
the requested report or form is mailed to the individual or employing unit
at the address on record with the Agency, or within ten days after the requested
forms or reports are personally delivered to the individual or employing unit
by the Agency.
(h)
When good cause is shown, the Agency may extend the due
date for filing of a report required under this section, however, the extension
shall only be effective if authorized in writing by the Agency.
§815.108.Signatures on Reports and Forms.
(a)
A report or form required by the Agency shall, if signature
is called for by the report or form or instructions, be signed by:
(1)
the individual, if the person required to submit the report
or form is an individual;
(2)
the president, vice-president, or other principal officer,
if the employing unit required to submit the report or form is a corporation;
(3)
a partner, if the employing unit required to submit the
report or form is a partnership;
(4)
a duly authorized member or officer having knowledge of
its affairs, if the employing unit required to submit the report or form is
an unincorporated organization;
(5)
the fiduciary, if the employing unit required to submit
the report or form is a trust or estate;
(6)
the head of the department (or the department head's designee)
having control of the services with respect to which contributions, reimbursements,
or other payments are attributable, if the employing unit required to submit
the report or form is the State of Texas or a branch, department, instrumentality,
or political subdivision thereof;
(7)
the group representative, if the report or form is being
submitted for a group account; or
(8)
any individual who is authorized in writing to sign for
each individual or employing unit.
(A)
The written authority shall be: filed with the Agency;
revocable by either party; and in terms which explicitly authorize the attorney
or agent to transact business between the grantor of said power and the Agency.
The written authority shall be filed in a manner prescribed by the Agency.
(B)
It shall be duly sworn to before a notary public or other
officer authorized to administer oaths.
(C)
The written authority shall be in full force and effect
until it is revoked in a manner prescribed by the Agency.
(D)
The Agency may reject any written authority that does not
conform with this section.
(b)
Nothing contained in this section shall in any way affect
the power and right of any representative of the Agency to prepare and sign
any reports or forms required by the Agency upon the failure or refusal of
any of the individuals listed in subsection (a) of this section to do so when
requested.
§815.109.Payment of Contributions and Reimbursements.
(a)
When, in any calendar year, an individual or employing
unit becomes an employer (other than a reimbursing employer) subject to this
Act, the employer shall, on or before the last day of the month next following
the month during which the employer became a subject employer, makes a report
and pay contributions with respect to all completed calendar quarters in the
calendar year. Contributions for the quarter during which the employer becomes
a subject employer shall be due on the first day of the month immediately
following the quarter and shall be paid on or before the last day of the month.
Contributions shall accrue quarterly and shall become due on the first day
of the month immediately following the calendar quarter. They shall be paid
to the Agency on or before the last day of the month.
(b)
Reimbursements shall become due on the last day of the
month following the end of each quarter and shall be paid to the Agency on
or before the last day of the next month.
(c)
When the last day for payment of contributions or reimbursements
falls on a Saturday, Sunday, or a legal holiday on which the Agency office
is closed, the payment may be made on the next regular business day.
(d)
An employer or other entity, including agents paying on
behalf of multiple employers, which paid contributions in the preceding state
fiscal year of $250,000 or more, and which is reasonably anticipated to do
the same in the current fiscal year, is required to transfer payment amounts
of contributions by electronic funds transfer on or before the date the contributions
are due, unless the Agency in writing has approved another method or form
of payment. Except as otherwise provided in this subsection, employers, including
agents may voluntarily transfer payment of contributions by electronic funds
transfer on or before the date the contributions are due, unless the Agency
in writing has approved another method or form of payment. The transfers,
when applicable, shall be subject to the provisions of the Texas Government
Code, §404.095, and to rules adopted by the state comptroller pursuant
to that section.
(e)
When good cause is shown, the Agency may extend the due
date for the payment of contributions or reimbursements, however, the extension
may not exceed 60 days and shall not be effective unless the extension is
authorized in writing by the Agency. In the event the Agency for good cause
shown extends the due date for payment of contributions or reimbursements
the payments shall be made to the Agency on or before the 30th day following
the extended due date.
(f)
An agent or other entity making a payment on behalf of
20 or more employers shall furnish an allocation list on magnetic or electronic
media using a format prescribed by this Agency, unless the Agency has approved
another format and method in writing. This list shall be furnished with the
remittance, and the remittance shall be allocated to the credit of the employers
according to the order in which the employers appear on the list.
§815.111.Transfer of Compensation Experience.
(a)
A joint application for transfer of compensation experience
shall contain all required information, and be in writing or other method
prescribed by the Agency. The applicants shall provide any additional information
requested by the Agency that it determines necessary to approve or disapprove
the application.
(b)
The waiver and all information furnished in accordance
with the requirements of this section and the Act, §204.084, shall be
signed and sworn to as true and correct before a notary public, and all written
information furnished and statements in writing made by a party to the application
shall constitute an integral part of the application whether the application
be on a single form or in several parts.
§815.112.Refunds to Employing Units.
A claim for refund or adjustment shall be made on a form supplied by
the Agency or by magnetic or electronic media using a format prescribed by
the Agency. All grounds and details and all facts alleged in support of the
claim shall be clearly set forth. The claim shall be filed by the employing
unit which paid the contributions, interest, or penalty or by a duly authorized
representative thereof. In addition, the Agency may require the claim to be
filed under oath.
§815.113.Commission Hearings Involving Coverage and Contributions or Reimbursements.
(a)
In all situations not specifically provided for in the
Act or in the rules of the Agency, a hearing may, at the discretion of the
Commission, be afforded an employing unit upon its written request, in any
case involving tax liability or any question relating to contributions or
reimbursements. Hearings under this section shall continue to be termed Rule
13 Hearings. The written request for hearing may be filed by hand delivery,
mail, common carrier, facsimile (fax) transmission, or other method approved
by the Agency in writing, at a local tax office or the Texas Workforce Commission,
101 East 15th Street, Austin, Texas 78778-0001.
(b)
The Commission may on its own motion set a hearing to secure
the facts to establish the status of any individual or employing unit under
any section of the Act.
(c)
The Commission may designate a representative to preside
over the hearing. Hearings shall be conducted by telephone conference call
unless the supervisor of the hearing officers or the supervisor's designee
determines that an in-person hearing is necessary. The hearings will be scheduled
and, if an in-person hearing, held at a place designated by the supervisor
of the hearings officers or the supervisor's designee in accordance with paragraphs
(1)-(3) of this section and the applicable provisions in this chapter.
(1)
Written notice of the date and time of the hearings shall
be given to the parties, and the location if it is an in-person hearing, at
least 10 days before the date of the hearing; but if a setting at an earlier
date is requested by an individual or employing unit, the supervisor of the
hearings officers or the supervisor's designee may at the supervisor's discretion
grant that request, if the granting of the request will not prejudice the
rights of any other party to the proceedings, including the Agency itself.
The notice shall be mailed to the parties at their last-known addresses.
(2)
In these proceedings before a hearing officer, all parties
shall be given an opportunity for full, fair, and impartial hearing. The hearings
shall be conducted in the manner deemed most suitable to ascertain the facts
and to determine the rights of the parties. All testimony taken shall be under
oath and subject to the right of cross-examination by any adverse party, and
it shall be recorded. When necessary, the hearing officer may order the taking
of depositions. The submission of written briefs, affidavits, and other written
memoranda may be required.
(3)
A witness, whose attendance at a hearing is required, may
be allowed a fee and mileage on the same basis and to the same extent as is
provided for witnesses under §815.18 of this chapter (relating to General
Rules for Both Appeal Stages).
(d)
The Commission, following each hearing, shall issue a decision,
which shall resolve the questions involving tax liability or any question
relating to contributions or reimbursements which arose at the hearing. Copies
of written decisions of the Commission shall be furnished the parties to the
hearings.
(e)
A decision of the Commission shall become final 30 days
after the date of mailing unless, within the 30 day-period, the proceeding
is either reopened by a Commission order or by a party to the proceeding filing
a written motion for reconsideration in accordance with the provisions of
subsection §815.17(g) of this chapter (relating to General Rules for
Both Appeal Stages). The motion for reconsideration is sent to the address
listed in the decision. A decision is not binding on a person who was not
a party to a proceeding conducted under this section.
§815.114.Employer Elections To Cover Multistate Workers.
(a)
Scope. This section shall govern the Texas Workforce Commission
in its administrative cooperation with other states subscribing to the Interstate
Reciprocal Coverage Arrangement (arrangement).
(b)
Definitions. As used in this section, the following words
and terms shall have the following meanings, unless the context clearly indicates
otherwise.
(1)
Agency--Any officer, board, the Texas Workforce Commission,
or other authority charged with the administration of the unemployment compensation
law of a participating jurisdiction.
(2)
Interested jurisdiction--Any participating jurisdiction
to which an election submitted under this section is sent for its approval;
and "interested agency" means the agency of that jurisdiction.
(3)
Jurisdiction--Any state of the United States, the District
of Columbia, Puerto Rico, the Virgin Islands, or, with respect to the federal
government the coverage of any federal unemployment compensation law.
(4)
Participating jurisdiction--A jurisdiction whose administrative
agency has subscribed to the arrangement and whose adherence thereto has not
terminated.
(5)
Services "customarily performed" by an individual in more
than one jurisdiction--Services performed in more than one jurisdiction during
a reasonable period, if: the nature of the services gives reasonable assurance
that the services will continue to be performed in more than one jurisdiction;
or the services are required or expected to be performed in more than one
jurisdiction under the election.
(c)
Submission and approval of coverage elections under the
Interstate Reciprocal Coverage Arrangement.
(1)
Any employing unit may file an election, on a form provided
by the Texas Workforce Commission, to cover under the law of a single participating
jurisdiction all of the services performed for the employing unit by any individual
who customarily works for the employing unit in more than one participating
jurisdiction.
(2)
The employing unit's election may be filed, with respect
to an individual, with any participating jurisdiction in which:
(A)
any part of the individual's services are performed;
(B)
the individual has a residence; or
(C)
the employing unit maintains a place of business to which
the individual's services bear a reasonable relation.
(3)
The agency of the elected jurisdiction (thus selected and
determined) shall initially approve or disapprove the election.
(4)
If the agency approves the election, it shall forward a
copy thereof to the agency of each other participating jurisdiction named
by the election under whose unemployment compensation law the individual or
individuals in question might, in the absence of the election, be covered.
Each interested agency shall promptly approve or disapprove the election,
and shall notify the agency of the elected jurisdiction.
(5)
In case its law so requires, an interested agency may,
before taking an action, require from the electing employing unit satisfactory
evidence that the affected employees have been notified of, and have acquiesced
in, the election.
(6)
If the agency of the elected jurisdiction, or the agency
of any interested jurisdiction, disapproves the election, the disapproving
agency shall notify the elected jurisdiction and the electing employing unit
of its action and of its reason therefor.
(7)
An election shall take effect as to the elected jurisdiction
only if approved by its agency and by one or more interested agencies.
(8)
An election that is approved shall take effect, as to any
interested agency, only if it is approved by the interested agency.
(9)
In case an election approved only in part, or disapproved
by some of the interested agencies, the electing employing unit may withdraw
its election within 10 days after being notified of the action.
(d)
Effective period of elections.
(1)
Commencement.
(A)
An election duly approved under this section shall become
effective at the beginning of the calendar quarter in which the election was
submitted, unless the election, as approved, specifies the beginning of a
different calendar quarter.
(B)
If the electing unit requests an earlier effective date
than the beginning of the calendar quarter in which the election is submitted,
the earlier date may be approved solely as to those interested jurisdictions
in which the employer had no liability to pay contributions for the earlier
period in question.
(2)
Termination.
(A)
The application of an election to any individual under
this section shall terminate, if the agency of the elected jurisdiction finds
that the nature of the services customarily performed by the individual for
the electing unit has changed, so that they are no longer customarily performed
in more than one participating jurisdiction. The termination shall be effective
as of the close of the calendar quarter in which notice of the finding is
mailed to all parties affected.
(B)
Except as provided in subparagraph (A) of this paragraph,
each election approved shall remain in effect through the close of the calendar
year in which it is submitted, and until the close of the calendar quarter
in which the electing unit gives written notice of its termination to all
affected agencies.
(C)
Whenever an election hereunder ceases to apply to any individual,
under subparagraphs (A) or (B) of this paragraph, the electing unit shall
notify the affected individual accordingly.
(e)
Reports and notices by the electing unit.
(1)
The electing unit shall promptly notify each individual
affected by its approved election on a form approved by the elected jurisdiction
and shall furnish the elected agency a copy of the notice.
(2)
Whenever an individual covered by an election hereunder
is separated from employment, the electing unit shall again notify the individual,
forthwith, as to the jurisdiction under whose unemployment compensation law
the individual's services have been covered. If at the time of termination
the individual is not located in the elected jurisdiction, the electing unit
shall notify the individual as to the procedure for filing interstate benefit
claims.
(3)
The electing unit shall immediately report to the elected
jurisdiction any change which occurs in the conditions of employment pertinent
to its election, such as cases where an individual's services for the employer
cease to be customarily performed in more than one participating jurisdiction
or where a change in the work assigned to an individual requires the individual
to perform services in a new participating jurisdiction.
(f)
Approval of reciprocal coverage elections. The executive
director, or the executive director's designee, has the authority to approve
or disapprove reciprocal coverage elections in accordance with this section.
§815.115.Contribution and Wage Reports Covering Seamen and Seamen's Wages Paid under Shipping Articles.
This section shall govern contribution and wage reports covering seamen
and seamen's wages paid under shipping articles.
(1)
Pay period. For the purpose of this section, the term "pay
period" established by "shipping articles" means the period of the voyage
or engagement of the crew under "articles of agreement" pursuant to 46 U.S.C.A. §564.
(2)
Current reports.
(A)
Contribution reports and wage reports with respect to wages,
including advances, allotments, and payment in kind, such as board and lodging,
earned in any pay period established by "shipping articles" shall be submitted
as of the calendar quarter in which any of the wages in cash were actually
paid or any of the wages in kind were furnished.
(B)
Reports on wages falling within the purview of this section
need not be filed prior to the time reports regarding wages paid at the termination
of the period shall be filed. However, separate reports shall in that event
be filed for each calendar quarter involved during which wages in cash were
paid and wages in kind were furnished.
(3)
Special reports. The employer shall, upon request of the
Agency, promptly furnish a statement of the wages of a seaman, whenever the
statement is necessary in order to determine a seaman's eligibility for and
rate of benefits. The statement shall be prepared and submitted in the manner
the Agency may prescribe in each case.
§815.128.Group Accounts.
(a)
Two or more eligible reimbursing employers may file a joint
application with the Agency for establishment of a group account on forms
furnished by the Agency, upon application being filled. The application shall
be filed upon a form furnished by the Agency and shall not be valid until
approved by an authorized representative of the Agency in writing.
(b)
The application shall identify and authorize an individual
to act as the group's representative. The individual shall be authorized by
all members of the group to maintain records, to prepare and sign reports,
to secure and furnish a surety bond for the group when directed by the Agency,
to furnish information to the Agency pertaining to the group and its members,
to collect and to pay all reimbursements and other amounts due to the Agency,
to specify those members that have failed to submit payments due, and to assist
the Agency in securing unpaid amounts due to the Agency from a member or members
of the group.
(c)
When the group account's application has been approved
by the Agency in writing, the group account shall be established and remain
active for not less than two years or until terminated. Application to terminate
the group account after two years shall be made by the group representative
no later than December 1 to be effective at the beginning of the next calendar
year.
(d)
At the discretion of the Agency, the group account may
be terminated at the end of a calendar year for failure to: file reports accurately
and timely; furnish information pertaining to the group or its members; furnish
a surety bond when requested; or pay reimbursements, penalties, and other
amounts due from the group.
(e)
Each member shall be liable for reimbursement of benefits
paid and other amounts which accrue after the group account has been terminated
in accordance with total wages paid by each member and by the group during
the last quarter that the group account was active and in which wages were
paid.
(f)
Addition of a new member or members to the group shall
not be valid unless a joint application, approved by all members of the group,
to add the member or members is filed with the Agency. The application shall
be filed upon a form furnished by the Agency, upon application being made
therefor, and shall be valid if approved in writing by an authorized representative
of the Agency. The application shall be effective as of the beginning of the
calendar quarter in which the Agency receives the application and each new
member or new members of the group shall be liable for reimbursements during
that and succeeding calendar quarters to the same extent as those members
previously a part of the group.
(g)
Withdrawal of an active member or members shall be valid
as of the end of a calendar quarter provided that a joint application for
withdrawal of the member or members is filed with and approved by the Agency
during the quarter. The remaining member or members of the group account shall
be liable for reimbursements during succeeding calendar quarters for all benefits
paid which are attributable to service in the employ of withdrawn members.
The application shall be filed upon a form furnished by the Agency, upon application
being made therefor, and shall not be valid until approved by an authorized
representative of the Agency in writing. At the discretion of the Agency,
the application may be denied if the group account has failed to pay all reimbursements
and other amounts due to the Agency on the date that the withdrawal application
is filed.
(h)
"Total wages paid" with respect to determining liability
for amounts due by members of a group means total payment of "wages" as defined
in the Act, except that the $9,000 limitation in the Act, §201.082 shall
not be applicable.
§815.129.Surety Bond.
(a)
A governmental employer, a nonprofit organization, or the
group representative of a group account that elects to become liable for reimbursements
shall furnish a surety bond on a form furnished or approved by the Agency
within 30 days after a request by the Agency for the bond is mailed to the
governmental employer, nonprofit organization, or group representative.
(b)
The amount of the surety bond shall be a percentage of
the projected amount of wages which would be subject to tax if the employer
was an employer liable for contributions under the Act. The percentage used
in determining the amount of the bond shall be equal to the maximum tax rate
that any employer who is liable for contributions during the year would have
to pay under the Act. The amount of taxable wages which the employer is expected
to pay during the next 12 months shall be determined by the Agency after considering
all available information.
(c)
The surety bond shall be executed by a licensed surety
company authorized to do business in the State of Texas, and the surety bond
must be approved by the Agency.
§815.130.Landmen Contracts.
For purposes of the Act, §201.077, a contract covering services
by a landman shall contain provisions which would support a finding that the
landman is to be treated as an independent contractor. A statement that the
landman is to be treated as an independent contractor will not be sufficient.
When the Agency determines that a written contract does not accurately reflect
the relationship between the parties because the landman is being treated
as an employee, then this exemption will not apply.
§815.131.Computation of Contribution Rates.
(a)
Computations of contribution rates under the Act, Chapter
204, will be made in accordance with work sheets that may be obtained from
the Texas Workforce Commission, 101 East 15th Street, Austin, Texas 78778-0001.
(b)
In calculating the replenishment ratio and replenishment
rate for a calendar year, the Agency shall determine the amount of benefits
that are paid during the 12 month period ending September 30 of the preceding
year that are charged to employers' accounts after the employers have reached
maximum liability because of the maximum tax rate. An employer who, at the
computation date at the beginning of the 12-month period, was eligible for
an experience tax rate, and who had a general tax rate of 6.0% as of January
1 of the 12-month period, will be included in the calculation of benefits
charged to the employers after the employers have reached maximum liability,
and will be included for the entire 12-month period. Any other employer with
a general tax rate of 6.0% for one or more calendar quarters within the 12-month
period will be included in the calculation, but only for the quarters for
which the employer has a general tax rate of 6.0%. For any employer included
in this calculation, the amount charged to the employer's account after the
employer has reached maximum liability because of the maximum tax rate will
be the amount by which the benefits charged to the employer's account exceed
6.0% of the employer's wages (as defined in the Act, §§201.081-201.082),
with both the benefits charged and the wages being for the period for which
the employer is included in the calculation as previously defined.
§815.133.Employee Staff Leasing and Temporary Help Firms.
(a)
A staff leasing services company licensed by the Texas
Department of Licensing and Regulation under Texas Labor Code Chapter 91 shall
be the employer of the workers it provides to a client company. If the staff
leasing services company is not licensed by the Texas Department of Licensing
and Regulation then the Agency shall determine that the client is the employer.
(b)
A temporary help firm is the employer of an individual
employed by the firm as a temporary employee. As defined in the Act, subsection
201.011(21), a temporary help firm is a person who employs individuals for
the purpose of assigning those individuals to work for the clients of the
temporary help firm to support or supplement a client's workforce during employee
absences, temporary skill shortages, seasonal workloads, special assignments
and projects, and other similar work situations.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State, on July 7, 2000.
TRD-200004726
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
Subchapter A. GENERAL PROVISIONS
40 TAC §817.6
The Texas Workforce Commission proposes new §817.6,
relating to Child Labor Law appeals of preliminary determination orders to
the Special Hearings Department.
Background: Texas Labor Code Chapter 51, Employment of Children (Child
Labor Law), provides for the implementation of rules and laws relating to
the employment of children. The Child Labor Law ensures that a child is not
employed in an occupation or manner that is detrimental to the child's safety,
health, or well-being. More specifically, the Child Labor Law sets forth provisions
including, but not limited to, the following:
minimum age;
performers in motion pictures or theatrical, radio, or television productions;
hours of employment;
hardship exemptions;
hazardous occupations;
operation of motor vehicle for certain commercial purposes;
inspections and collection of information relating to the employment of
children;
civil and criminal penalties for failure to comply with the Child Labor
Law;
offenses and penalties for the initial investigation process; and
the appeals processes regarding offenses and penalties assessed.
The purpose of the new rule is to provide notice of and a cross-reference
to rules relating to the appeals processes in Child Labor Law hearings. The
Child Labor Law hearings conducted by the Special Hearings Department are
subject to the Unemployment Insurance Rules, found at Title 40 Texas Administrative
Code (TAC) Chapter 815. The use of the Unemployment Insurance appeal process
is required by Texas Labor Code §51.033(g). The cross-reference in the
Child Labor Rules is added to provide clarification to the public regarding
the statutorily required appeals processes.
Randy Townsend, Chief Financial Officer, has determined that for the first
five years the rule is in effect, the following statements will apply:
there are no additional estimated costs to the state and to local governments
expected as a result of enforcing or administering this rule;
there are no estimated reductions in costs to the state or to local governments
expected as a result of enforcing or administering this rule;
there are no estimated losses or increases in revenue to the state or to
local governments as a result of enforcing or administering this rule;
there are no foreseeable implications relating to costs or revenues to
the state or to local governments as a result of enforcing or administering
this rule; and
there are no anticipated costs to persons who are required to comply with
this rule as proposed.
Mr. Townsend has also determined that there is no anticipated adverse impact
on small businesses as a result of enforcing or administering this rule because
the rule only clarifies what is already required under the statute, and is
meant to help the public locate the rules that apply to Child Labor Law hearings
based on appeals to the Special Hearings Department.
Chester Skorupa, Director of Labor Law, has determined that for each year
of the first five years that the rules will be in effect, the public benefit
anticipated as a result of the adoption of the proposed rule will be to assist
the public in locating rules that apply to Child Labor Law hearings.
Mark Hughes, Director of Labor Market Information, has determined that
there is no foreseeable impact upon employment conditions in this state as
a result of this proposed rule.
Comments on the proposed section may be submitted to Chester Skorupa, Director
of Labor Law, Texas Workforce Commission, Labor Law, 101 East 15th Street,
Suite G-1, Austin, Texas, 78778-0001; Fax Number (512) 834-3632; or E-mail
to chester.skorupa@twc.state.tx.us. Comments must be received by the Texas
Workforce Commission no later than 30 days from the date this proposal is
published in the
Texas Register
.
The new rule is proposed under Texas Labor Code §§51.023,
301.061 and 302.002, which provides the Texas Workforce Commission with the
authority to adopt, amend, or repeal such rules as it deems necessary for
the effective administration of the Texas Workforce Commission's services
and activities.
The proposal affects the Texas Labor Code, Title 2.
§817.6.Appeals.
Hearings conducted under Texas Labor Code, Chapter 51, are subject
to the rules and hearing procedures set out in the Unemployment Insurance
Rules at 40 TAC Chapter 815, except to the extent that such sections are clearly
inapplicable or contrary to provisions set out under the Texas Child Labor
Rules or under Texas Labor Code, Chapter 51.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 6, 2000.
TRD-200004696
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
Subchapter C. WAGE CLAIMS
40 TAC §821.45
The Texas Workforce Commission proposes amendments to §821.45,
relating to appeals of Payday Law preliminary wage determination orders.
Background: Texas Labor Code Chapter 61, Payment of Wages (Payday Law),
provides for the implementation of rules and laws relating to payment of wages.
The Payday Law provides for the adjudication of wage claims by certain employees
asserting claims against certain employers in Texas regarding wages that are
due and unpaid. More specifically, the Payday Law sets forth provisions, including,
but not limited to, the following:
designation of paydays,
payment on days other than on paydays,
payment after termination of employment,
payment of commissions and bonuses,
form of payment,
delivery of payment,
deductions from wages,
filing a wage claim,
penalties for failure to pay wages,
the initial investigation process, and
appeals processes regarding wages claimed unpaid and due.
The purpose of the proposed amendments is to provide notice of and a cross-reference
to the location of the rules used relating to appeal hearings under the Act.
The Payday Law hearings conducted by the Special Hearings Department are subject
to the Unemployment Insurance Rules, found at Title 40 Texas Administrative
Code (TAC), Chapter 815. The use of the Unemployment Insurance appeal process
is required by Texas Labor Code §61.058(a). The cross-reference in the
Payday Rules is added to provide clarification to the public regarding the
statutorily required appeals processes.
Randy Townsend, Chief Financial Officer, has determined that for the first
five years the rule is in effect, the following statements will apply:
there are no additional estimated costs to the state and to local governments
expected as a result of enforcing or administering this rule;
there are no estimated reductions in costs to the state or to local governments
expected as a result of enforcing or administering this rule;
there are no estimated losses or increases in revenue to the state or to
local governments as a result of enforcing or administering this rule;
there are no foreseeable implications relating to costs or revenues to
the state or to local governments as a result of enforcing or administering
this rule; and
there are no anticipated costs to persons who are required to comply with
this rule as proposed.
Mr. Townsend has also determined that there is no anticipated adverse impact
on small businesses as a result of enforcing or administering this rule because
this rule only clarifies what is already required in the statute, and is meant
to help the public locate the rules that apply to Payday Law hearings.
Chester Skorupa, Director of Labor Law, has determined that for each year
of the first five years that this rule will be in effect, the public benefit
anticipated as a result of the adoption of the proposed rule will be to assist
the public in locating rules that apply to Payday Law hearings based on appeals
to the Special Hearings Department.
Mark Hughes, Director of Labor Market Information, has determined that
there is no foreseeable impact upon employment conditions in this state as
a result of this proposed rule.
Comments on the proposed section may be submitted to Chester Skorupa, Director
of Labor Law, Texas Workforce Commission, Labor Law, 101 East 15th Street,
Suite G-1, Austin, Texas, 78778-0001; Fax Number (512) 834-3632; or E-mail
to chester.skorupa@twc.state.tx.us. Comments must be received by the Texas
Workforce Commission no later than 30 days from the date this proposal is
published in the
Texas Register
.
The amended rule is proposed under Texas Labor Code §§61.002(a)(2),
301.061 and 302.002, which provides the Texas Workforce Commission with the
authority to adopt, amend, or repeal such rules as it deems necessary relating
to the Payday Law and for the effective administration of the Texas Workforce
Commission's services and activities.
The proposal affects the Texas Labor Code, Title 2.
§821.45.Appeals.
(a)
(No change.)
(b)
The Commission shall hear all timely requests for reopening
and grant such requests if it appears the petitioner has shown good cause
for
the petitioner's
[his]failure to appear at the prior hearing.
(c)
Hearings conducted under the Act are subject
to the rules and hearing procedures set out in the Unemployment Insurance
Rules at 40 TAC Chapter 815, except to the extent that such sections are clearly
inapplicable or contrary to provisions set out under the Texas Payday Rules
or under the Act.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 6, 2000.
TRD-200004697
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
Subchapter B. NONDISCRIMINATION AND EQUAL OPPORTUNITY
40 TAC §839.11
The Texas Workforce Commission (Commission) proposes amendments
to §839.11 relating to the applicable procedure for resolving nondiscrimination
and equal opportunity complaints under the Welfare to Work Act.
It is proposed that §839.11 be amended to reflect the use of Workforce
Investment Act (WIA) nondiscrimination rules rather than the Job Training
Partnership Act nondiscrimination rules in processing complaints of discrimination
by participants in Welfare to Work activities. Concurrent with this filing,
the Commission is proposing the repeal of Chapter 805, Subchapter H relating
to the Job Training Partnership Act nondiscrimination and equal opportunity
provisions. The Commission is also proposing new §§841.201-841.215
relating to the nondiscrimination and equal opportunity requirements of the
Workforce Investment Act (WIA) to be published in this issue of the
Randy Townsend, Chief Financial Officer, has determined that for the first
five years the amendments are in effect, the following statements will apply:
there are no additional estimated costs to the state and to local governments
expected as a result of enforcing or administering the amendments;
there are no estimated reductions in costs to the state or to local governments
expected as a result of enforcing or administering the amendments;
there are no estimated losses or increases in revenue to the state or to
local governments as a result of enforcing or administering the amendments;
there are no foreseeable implications relating to costs or revenues to
the state or to local governments expected as a result of enforcing or administering
the amendments; and
there are no anticipated costs to persons who are required to comply with
the amendments as proposed.
Mr. Townsend has also determined that there is no anticipated adverse impact
on small businesses as a result of enforcing or administering the amendments
because the costs required to comply with the amendments are costs directly
required to comply with federal statute and regulations.
Barbara Cigainero, Director of Workforce Development, has determined that
the public benefit anticipated as a result of the amendments as proposed will
be to assure compliance with federal statutory and regulatory requirements
for nondiscrimination and equal opportunity, and to assist the Boards in meeting
these requirements and preventing any interruption in access to federal funds.
Mark Hughes, Director of Labor Market Information, has determined that
there is no foreseeable negative impact upon employment conditions in this
state as a result of these proposed amendments.
Comments on the proposed amendments may be submitted to Pat Garland, Equal
Opportunity Office, Texas Workforce Commission, 101 East 15th Street, Room
220, Austin, Texas, 78778; Fax Number (512) 463-2444; or E-mail to pat.garland@twc.state.tx.us.
The amendments are proposed under Texas Labor Code §301.061
and §302.002, which provide the Texas Workforce Commission with the authority
to adopt, amend or repeal such rules as it deems necessary for the effective
administration of Commission services and activities.
The proposal affects Texas Labor Code, Title 4, and Texas Government Code,
Chapter 2308.
§839.11.Applicability.
In accordance with 20 CFR §645.255, this subchapter establishes
the state
WIA
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 10, 2000.
TRD-200004747
J. Randel (Jerry) Hill
General Counsel
Texas Workforce Commission
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 463-8812
Subchapter F. WIA NONDISCRIMINATION AND EQUAL OPPORTUNITY
Beginning with the 1997 cost reports, it
]
It
is the responsibility of the provider to ensure that each preparer
signing the Cost Report Methodology Certification has attended
the required
cost report training conducted by DHS. Preparers may be employees of
the provider or persons who have been contracted by the provider for the purpose
of cost report preparation. Preparers must attend cost report training for
each program for which a cost report is submitted.
Beginning with the
2001 cost report, preparers
[
Preparers
] must attend cost
report training
every other year for the odd-year cost report in order
to be certified to complete both that odd-year cost report and the following
even-year cost report. If a new preparer wishes to complete an even-year cost
report and has not attended the previous odd-year cost report training, to
be certified to complete the even-year cost report, he/she must attend an
even- year cost report training. For the 2000 cost report, preparers that
met their two-consecutive-year training requirement for the 1999 cost report
are not required to attend cost report training for the 2000 cost report.
Preparers that did not meet their two- consecutive-year requirement for the
2000 cost report are required to attend cost report training for the 2000
cost report.
[
for two consecutive years, after which they are required
to attend training on at least a biennial basis.
] A copy of the most
recent cost report training certificate for each preparer of the cost report
must be submitted with each cost report. Travel costs to attend the state-sponsored
cost report training are allowable within the travel limits specified in §20.103(b)(12)
of this title (relating to Specifications for Allowable and Unallowable Costs).
Contracted preparer's fees to attend state-sponsored cost report training
are allowable.
Implicit
Price Deflator-Personal
]
Personal
Consumption Expenditures
(PCE)
[
(IPD-PCE)
]
chain-type price index
as the general cost inflation index. The
PCE
[
IPD-PCE
]
is a nationally recognized measure of inflation published by the Bureau of
Economic Analysis of the U.S. Department of Commerce. To project or inflate
costs from the reporting period to the prospective reimbursement period, DHS
uses the lowest feasible
PCE
[
IPD-PCE
] forecast consistent
with the forecasts of nationally recognized sources available to DHS at the
time proposed reimbursement is prepared for public dissemination and comment.
IPD-PCE
]. Professional and/or paraprofessional wage
and benefit inflation rates for state employees are based on state employee
wage and salary increases determined by the Texas Legislature.
Part 5.
VETERANS LAND BOARD
(6)
] Covenants--The bond covenants
undertaken by the Veterans Land Board in association with the sale of bonds.
(7)
] FHA--The Federal Housing Administration
of the Department of Housing and Urban Development of the United States of
America or any successor thereto.
(8)
] FHLMC--Federal Home Loan Mortgage
Corporation or any successor thereto.
(9)
] FNMA--Federal National Mortgage
Association or any successor thereto.
(10)
] FSLIC--The Federal Savings
and Loan Insurance Corporation.
(11)
] Fund--The veterans housing
assistance fund.
by the board
] to participate in the Veterans
Housing Assistance Program.
Veterans Administration of the United States of America
]
or any successor thereto.
The Veterans Affairs Commission (commission) shall
determine all questions of eligibility to participate in the program and shall
certify to the chairman whether an applicant is eligible.
] The Veterans
Land Board (board) shall be the final authority in defining and interpreting
all
[
the
] eligibility requirements, and [
the commission
shall be the final authority as to
] whether a veteran loan applicant
has actually satisfied those requirements
. The board
[
and
] may prescribe the procedures and forms to be used by veteran loan
applicants to evidence eligibility. [
The board may, in its discretion,
agree to review any decision by the commission, but only for the purpose of
determining if the eligibility requirements were properly interpreted by the
commission. In such event, the board's decision shall be final.
]
(3)
] is a bona fide resident of
Texas at the time of application for a loan. For purposes of this chapter,
bona fide resident means a person actually living in the State of Texas, with
the intention to remain;
(4)
] has served not less than 90
continuous days of active duty or active duty training time in the Army, Navy,
Air Force, Coast Guard, Marine Corps, United States Public Health Service,
or the reserve component of one of the listed branches of service, unless
discharged earlier because of a service-connected disability, which service
must have been after September 16, 1940
; or
[
, or have enlisted
or received an appointment in the Texas National Guard after completing all
initial active duty training required as a condition of enlistment or appointment,
and who has not been dishonorably discharged from the Texas National Guard.
]
(5)
] has not been dishonorably discharged
from military service;
and
(6)
] was a bona fide resident of
Texas at the time of enlistment, induction, commissioning, or drafting; or,
has resided in Texas continuously for at least two years immediately before
the date of application for a loan;
commission
] may require an affidavit from the applicant
setting forth residence addresses for this two year period. In addition, the
board
[
commission
] may require the applicant to furnish documentary
evidence of such residence, including, but not limited to driver's licenses,
voter registrations, tax receipts, W-2 forms, etc.;
commission
] may require that an affidavit of Texas residence
be submitted to show evidence of at least two years of continuous residence
in Texas immediately prior to the date of application. The
board
[
commission
] may establish other procedures for verifying that
the veteran applicant was a bona fide resident of Texas at time of enlistment,
induction, commissioning, or drafting;
(4)
] the deceased veteran had served
on active duty or active duty training time in the Army, Navy, Air Force,
Coast Guard, Marine Corps, Public Health Service, or reserve component of
one of the listed branches of service after September 16, 1940, or enlisted
or received an appointment in the Texas National Guard. The deceased veteran
need not have served at least 90 continuous days of active duty; and
(5)
] certification is received from
the
VA
[
United States Veterans Administration
] that
the unmarried surviving spouse is currently entitled to benefits as the spouse
of a veteran who died in the line of duty
or is missing in action
.
This
[
The line of duty
] requirement may be satisfied upon
the presentation of other evidence.
All application materials required by the board
will be distributed by the administrator to all participating lending institutions.
Veterans wishing to participate in the program must first contact a participating
lending institution which will acquaint the veteran with the program and determine
if the veteran qualifies for the participating lending institution's portion
of the loan. If the veteran is approved by the participating lending institution,
it will assist the veteran in completing the application forms for the program.
The institution will collect a $25 application fee from the veteran and forward
it with the completed application forms to the commission.
]
The
board will provide by interagency contract with the commission for the commission's
fee for certifying the veteran's eligibility, the manner by which this fee
shall be paid, and how the $25 application fee is to be forwarded to the board.
The commission shall review the application and eligibility documentation
of the veteran and either approve or disapprove the application.
]
For each application approved by
the commission, the board's staff will determine if the veteran has previously
participated in either the Veterans Land Program or the Veterans Housing Assistance
Program. If the veteran has no previous participation, or has satisfactorily
paid in full all prior loans, the chairman will notify the administrator of
its approval of the board's portion of the loan.
]
Upon receipt of notice of the board's approval, the administrator will notify
both the veteran and the participating lending institution of the approval
of the veteran's loan, and state the period of time for which funds are reserved
for the veteran.
]
Part 20.
TEXAS WORKFORCE COMMISSION
Chapter 815.
UNEMPLOYMENT INSURANCE
Subchapter A. GENERAL PROVISIONS
Subchapter B. BENEFITS, CLAIMS AND APPEALS
Subchapter C. TAX PROVISIONS
Chapter 817.
CHILD LABOR
Chapter 821.
TEXAS PAYDAY RULES
Chapter 839.
WELFARE TO WORK
JTPA
] rules regarding Nondiscrimination
and Equal Opportunity, located in
§§841.208-841.215
[
§805.260
] of this title (relating to
Workforce Investment
[
Job Training Partnership
] Act Rules) [
et seq.
]
as the applicable procedure for resolving Nondiscrimination and Equal Opportunity
complaints in the Welfare to Work Act, except as otherwise provided in this
subchapter.
Chapter 841.
WORKFORCE INVESTMENT ACT