Part 3.
TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
Chapter 142.
INVESTIGATIONS AND HEARINGS
40 TAC §142.11, 142.21, 142.31, 142.32
The Texas Commission on Alcohol and Drug Abuse (Commission)
adopts the repeal of Chapter 142, §§142.11, 142.21, 142.31 and 142.32,
concerning Investigations and Hearings, without changes to the proposal as
published in the August 29, 2003, issue of the
Texas
Register
(28 TexReg 7221).
The repeal of Chapter 142 is necessary because the Commission is adopting
new rules. The new rules have been reorganized to provide a more functional
and logical framework that is more closely aligned with the rules of other
agencies operating under the Health and Human Services Commission and the
State Office of Administrative Hearings.
There were no comments regarding the repeal of these sections.
The repeal is adopted under the Texas Health and Safety Code §461.012(a)(15)
which provides the Commission with the authority to adopt rules governing
its functions and Texas Health and Safety Code §464.009, which provides
the Commission with the authority to adopt rules and standards for the licensure
of chemical dependency treatment facilities. The repeal is also adopted under
Texas Occupations Code Chapter 504, which provides the Commission authority
to establish rules for the licensure of chemical dependency counselors and
Texas Transportation Code §521.374, Texas Alcoholic Beverage Code §106.115,
and Texas Code of Criminal Procedures Article 42.12, which provide the Commission
authority to establish rules governing offender education programs.
The codes affected by the repeal are Chapters 461 and 464 of the Texas
Health and Safety Code and Chapter 504 of the Texas Occupations Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 18, 2003.
TRD-200308692
Thomas F. Best
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: February 1, 2004
Proposal publication date: August 29, 2003
For further information, please call: (512) 349-6668
40 TAC §§142.101 - 142.104
The Texas Commission on Alcohol and Drug Abuse (Commission)
adopts new Chapter 142, §§142.101 - 142.104, concerning Investigations
and Hearings, with changes to the text that was published in the September
5, 2003, issue of the
Texas Register
(28 TexReg
7652).
The new chapter has been reorganized to better align the rules with those
of the State Office of Administrative Hearings (SOAH). Additionally, the Commission
has simplified its description of the process for categorizing and responding
to complaints and allegations of abuse/neglect set forth in these rules.
Changes have been made to §§142.101 - 142.104 as proposed. The
process used to categorize complaints has been moved from this chapter to
internal procedures. Additionally, the Commission declines to adopt the penalty
guidelines proposed in the published rules. In adopting §§142.101
- 142.104, the Commission makes other grammatical and non-substantive changes
for the purpose of clarifying its intent.
The public comment period began on September 5, 2003, with the publication
of the proposed rules in the
Texas Register
and
on the Commission's website, and ended October 22, 2003. Public meetings to
discuss the rules were held during the comment period in Austin, Dallas and
Houston. The Commission received the majority of comments in writing by e-mail,
fax and U.S. mail. Commission staff summarized the comments received and published
draft responses for review on the Commission's website in advance of its November
12, 2003, open meeting. The draft included a number of changes in response
to the concerns expressed. As directed by the Commissioners at the November
12 meeting, the rules were revised further and published along with a draft
final order on the Commission's website in advance of the December 9, 2003,
open meeting. Chapter 142 was approved for adoption during that meeting.
The Commission received comments on the proposed rules from Amarillo Council
on Alcoholism and Drug Abuse (Amarillo Council), The Association of Substance
Abuse Programs (ASAP), Serenity Foundation of Texas, and interested individuals.
§142.103(j), Procedure for Contested Cases
for Counselor and Facility Licenses.
Amarillo Council, ASAP, and Serenity
Foundation of Texas comment that the Commission Board is referred to several
places in 40 TAC Chapter 142. The commenters questioned the impact on the
rules of the dissolution of the current governing Commission Board as part
of the process of consolidation. The commenters suggested eliminating the
reference to the Board since it is currently unknown what body will govern
or oversee Commission functions once the consolidation takes place. The Commission
disagrees. The statutes which provide the Commission with authority to investigate
and discipline licensees distinguish between the powers and authority of the
Board versus that of the Executive Director of the Commission. In all cases,
these statutes require that Board or Executive Director render final disciplinary
actions against licensees. As a result, reference must be made in 40 TAC Chapter
142 to the disposition of cases by each, until such authority is amended by
statute. While the legislation proposes dismantling of the current five member
governing body of the Commission, it does not specifically amend the disciplinary
action authority granted to that body or provide for an alternate body or
designee for disposition of disciplinary action cases. The Board and Executive
Director's powers and authority relating to disciplinary action cases, therefore
remain in effect until that function is consolidated.
§142.104(a), Administrative Penalties for
Licensed Facilities and Counselors and Offender Education Programs.
ASAP
comments that disciplinary actions posted on the web site can be misleading
and confusing to the public. ASAP suggested that the Commission establish
a threshold for web site publication of disciplinary actions. ASAP further
commented that in the absence of a "rating" process, the public needs to be
able to distinguish the seriousness or nature of a violation. ASAP agrees
that all disciplinary actions need to be public record, but suggests there
should be some level that is reached before publication on the web site. Additionally,
ASAP suggests that only facilities that have experienced multiple and/or repeat
offensives or a particularly egregious offenses, be listed on the website.
The Commission disagrees. The Commission posts disciplinary actions on its
web site to notify the public of violations by licensees. The Commission has
established thresholds for compliance in which minor infractions may not reach
the level of a violation subject to a penalty, before a case goes forward.
The violations cited in a report, and thus, the resulting case posted on the
web, are those items that the Commission regards as appropriate for the public
to be aware, where the acts or omissions of a facility have been identified
as non-compliant. The general public and licensees can request copies of the
order disposing of a case to review the corresponding penalty for each violation.
While not impacted by the proposal and adoption of these rules, the Commission
will consider including the corresponding penalty on its web site, the level
of which, i.e. "warning" versus $500 penalty, corresponds to the severity
level of the violation.
This new chapter is adopted under the Texas Health and Safety
Code §461.012(a)(15) which provides the Commission with the authority
to adopt rules governing its functions and Texas Health and Safety Code §464.009,
which provides the Commission authority to adopt rules and standards for the
licensure of chemical dependency treatment facilities. The new 40 TAC Chapter
142 is also adopted under Texas Occupations Code 504, which provides the Commission
authority to establish rules for the licensure of chemical dependency counselors
and Texas Transportation Code §521.374, Texas Alcoholic Beverage Code §106.115,
and Texas Code of Criminal Procedures Article 42.12, which provide the Commission
authority to establish rules governing offender education programs.
The codes affected by the adoption of these rules are Chapters 461 and
464 of the Texas Health and Safety Code and Chapter 504 of the Texas Occupations
Code.
§142.101.Definitions.
The words and terms used in this Chapter shall have meanings set forth
in Chapter 141 of this title (relating to General Provisions), unless the
context clearly indicates otherwise.
§142.102.Complaints and Investigations.
(a)
A person alleging that a provider or licensee has violated
Commission statute or rules may file a complaint with the Commission. All
complaints shall be in writing. Complaints about licensed counselors must
be submitted in writing and under oath.
(b)
The Commission accepts oral or written reports concerning
acts of abuse or neglect of children, the elderly, or the disabled relating
to persons funded or licensed by the Commission.
(1)
When it receives a report of abuse or neglect of a child,
the Commission also notifies the appropriate State or local law enforcement
agency.
(2)
When it receives such a report, the Commission notifies
any other known agencies which license or fund the alleged perpetrator if
permitted by law.
(c)
The Commission may initiate an investigation or disciplinary
action against a provider if it receives information that a violation has
or may have occurred.
(d)
The Commission documents, evaluates, and prioritizes complaints
based on the seriousness of the alleged violation and the level of client
or participant risk.
(e)
The Commission will refer complaints outside its jurisdiction
to the appropriate agency for action as needed.
(f)
The Commission will conduct a prompt and thorough investigation
of all complaints that pose a threat of harm to the health and safety of clients
or participants, including all allegations of abuse, neglect, and exploitation
or allegations of fraud and misuse of State funds.
(g)
The Commission will evaluate complaints that do not pose
a risk of harm to clients or participants. Based on the nature and severity
of the alleged incident, the Commission will determine whether to investigate
the complaint directly or require the provider to conduct an internal investigation
and submit its findings to the Commission. The results of a provider's internal
investigation will be reviewed and may result in additional investigation
by the Commission.
(h)
The Commission shall inform the person in writing of the
nature of the complaint unless it would jeopardize the investigation.
(i)
The person under investigation shall provide Commission
staff access to all documents, evidence, and individuals related to the alleged
violation, including the results of any internal investigations.
(j)
Until the case is resolved, the Commission shall send quarterly
written status reports to all parties and the complainant.
(k)
The Commission shall prepare a complete written report
of its investigative findings and conclusions.
(l)
The Commission shall inform the person under investigation
and the complainant of the results of the investigation.
(1)
If the Commission has found evidence that a child may have
been abused or neglected, it shall report the evidence to the appropriate
State or local law enforcement agency.
(2)
If the investigation reveals that an elderly or disabled
person has been abused, neglected or exploited by another person in a manner
that constitutes a criminal offense under any law, including TEX. PEN. CODE
ANN. §22.04 (Vernon 2003 & Supp. 2004), the Commission shall submit
a copy of the investigative report to the appropriate State or local law enforcement
agency as permitted by law.
§142.103.Procedure for Contested Cases for Counselor and Facility Licenses.
(a)
At any stage of a disciplinary case, the Commission and
a respondent may resolve the case by entering into an agreed order.
(b)
The Commission has the right to discovery at any stage
of the disciplinary action process.
(c)
The Commission, upon investigation/inspection and development
of information indicating that grounds may exist to take disciplinary action,
shall issue a notice of intent notifying the respondent of the proposed action.
(1)
The notice letter shall be sent via regular first-class
and certified mail to the respondent's address of record.
(2)
The notice shall specify:
(A)
the statutes, rules, or orders allegedly violated;
(B)
the factual basis of the alleged violations;
(C)
the disciplinary action the Commission intends to take;
and
(D)
notice of an opportunity for a hearing to be held under
Subchapter C of the TEX. GOV'T CODE ANN. ch. 2001 (Vernon 2000 & Supp.
2004) (Administrative Procedures Act--APA).
(3)
If the Commission is seeking an administrative penalty,
the letter shall also inform the respondent of the amount of the recommended
penalty and of the opportunity for a hearing on the violation, the amount
of the penalty, or both.
(4)
The letter shall also include the following notices.
(A)
If the respondent does not request a hearing on or before
the 20th day after notice is effective, the allegations will be deemed true
and the Commission will issue a default final order implementing the proposed
action.
(B)
If the respondent requests a hearing but fails to appear
at the scheduled hearing, the allegations will be deemed true and the State
Office of Administrative Hearings (SOAH) will recommend a default proposal
for decision to implement the proposed action.
(C)
Notice is effective five days after the date of mailing.
(d)
A respondent must submit a timely written request for a
hearing to avoid having the allegations in the notice letter deemed true and
a default order implementing the proposed action issued by the Commission.
The request for hearing is timely if filed with the Commission or postmarked
on or before the 20th day after the notice is effective.
(e)
If the respondent fails to request a hearing on or before
the 20th day after effective notice, the factual allegations of the notice
letter may be deemed true and shall form the basis of a default final order
implementing the proposed action.
(f)
The Commission may offer the respondent an opportunity
to dispose of the case through an agreed order, or proceed to hearing under
the APA and SOAH Rules of Procedure, 1 TAC Chapter 155 (2003).
(g)
The Commission shall send written notice of the hearing
to the respondent's address of record at least ten days before the date of
the hearing. The notice shall include:
(1)
the date, time, place and nature of the hearing;
(2)
a statement of the legal authority and jurisdiction under
which the hearing is to be held;
(3)
a reference to the particular sections of the statutes
and rules involved;
(4)
a short, plain statement of the matters asserted; and
(5)
a statement that if the respondent does not appear at the
hearing, the allegations will be deemed true and the action proposed in the
notice of hearing may be granted by default.
(h)
If the respondent fails to appear at a scheduled SOAH hearing
after being given proper notice of the hearing, SOAH shall issue a proposal
for decision recommending the proposed action.
(i)
If the case is not resolved through agreed order, default
decision and goes forward to administrative hearing, the hearing shall be
conducted by an administrative law judge employed by SOAH and shall comply
with the requirements of the APA and SOAH Rules of Procedure, 1 TAC Chapter
155 (2003).
(1)
At the hearing, parties in attendance shall be allowed
to present evidence, to examine witnesses, to cross-examine adverse witnesses,
to make argument, and to submit legal authority.
(2)
After the hearing, the administrative law judge shall issue
a proposal for decision containing a statement of the reasons for the proposed
decision and of each finding of fact and conclusion of law necessary to the
proposed decision.
(3)
Exceptions to the proposal for decision, if filed, must
be filed with the administrative law judge within 20 days after the date the
proposal for decision is mailed. Replies to the exceptions, if any, must be
filed with the administrative law judge within 30 days after the date the
proposal for decision is mailed.
(j)
The Commission's board will consider the proposal for decision
in all matters other than an administrative penalty for a licensed chemical
dependency counselor at a public meeting and issue an order.
(k)
The executive director will consider the proposal for decision
regarding an administrative penalty for a licensed chemical dependency counselor.
(l)
A motion for rehearing, if filed, must be filed in accordance
with the APA. When a motion for rehearing is directed at a default final order,
the motion must be supported by evidence and address the following factors:
(1)
failure to answer or appear at the hearing was due to an
accident or mistake and was not intentional or the result of a conscious indifference;
(2)
the respondent can present a meritorious defense to the
fact findings and legal conclusions in the order; and
(3)
granting the rehearing will not work any injury to the
Commission or its mission.
(m)
The respondent appealing a final order shall pay to the
Commission the cost of preparing the original or a certified copy of the record
that is to be transmitted to the reviewing court at rates approved by the
Texas Building and Procurement Commission.
§142.104.Administrative Penalties for Licensed Facilities and Counselors and Offender Education Programs.
(a)
Violations are categorized according to the seriousness
of the violation and the actual or potential harm to the health, safety, and
welfare of the public. The Commission has established guidelines for assigning
penalties. These guidelines show how various offenses are categorized, but
do not limit the Commission's authority to categorize any particular offense
that is not already included in the guidelines, to modify those offenses already
categorized, to assess a different penalty or propose another form of disciplinary
action. These guidelines are available for review on the Commission's web
site (www.tcada.state.tx.us) and at the Commission's administrative offices
at 9001 North IH 35, Suite 105, Austin, Texas, 78753-5233.
(b)
The assessment of administrative penalties against an offender
education program is governed by §153.108 of this title (relating to
Offender Education Programs).
(c)
Administrative penalties are not assessed for the most
serious violations. Instead, the Commission will seek to deny, refuse to renew,
revoke or suspend the license, certification or approval.
(d)
The base administrative penalty for a first time offense
is $500, $200 or $40 dollars, depending on the severity of the violation.
(1)
The base administrative penalty is doubled for a second-time
violation and tripled for a third-time violation. If the same violation is
identified four times, the Commission may seek to revoke or suspend the license,
certification or approval or assess an administrative penalty of four times
the base amount.
(2)
If the total dollar value of administrative penalties assessed
during a single inspection or investigation is over $5,000 for a facility
or $2,000 for a counselor, the Commission may seek to revoke or suspend the
license instead of imposing an administrative penalty.
(e)
When administrative penalties are recommended, the executive
director or designee shall report staff findings and recommendations to the
board, including the amount of the recommended penalty.
(f)
The executive director shall give written notice to the
licensee adversely affected. The notice will be by certified mail. The notice
shall include:
(1)
a brief summary of the alleged violations;
(2)
a statement of the amount of the recommended penalty; and
(3)
a notification that the licensee has a right to a hearing
on the occurrence of the violation, the amount of the penalty, or both.
(g)
A request for hearing must be filed in writing within 20
days of the effective date of notice. Notice is effective five days after
mailing.
(h)
Section 142.103 of this title (relating to Procedure for
Contested Cases for Counselor and Facility Licenses) applies to these proceedings.
(i)
Failure to pay an administrative penalty will result in
suspension of the license. A licensee who has not paid final administrative
penalties is not eligible for licensure renewal.
(j)
If approved by the Commission, a licensee may surrender
the license in lieu of paying administrative penalties. The licensee may reapply
for licensure if:
(1)
administrative penalties are paid prior to application;
and
(2)
two years have passed since the date of surrender.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on December 18, 2003.
TRD-200308691
Thomas F. Best
General Counsel
Texas Commission on Alcohol and Drug Abuse
Effective date: February 1, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 349-6668
Chapter 183.
BOARD FOR EVALUATION OF INTERPRETERS AND INTERPRETER CERTIFICATION
Subchapter A. DEFINITIONS AND BOARD OPERATIONS
40 TAC §183.17
The Texas Commission for the Deaf and Hard of Hearing adopts
an amendment to §183.17, concerning Board Membership without changes
to the proposal published in the September 5, 2003, issue of the
Texas Register
(28 TexReg 7673).
The adoption broadens the requirements for individuals seeking a position
on the BEI Advisory Committee. In addition to allowing for the recruitment
of professors who have expertise in linguistics and test development.
No public comments were received on the proposal.
The amendment is adopted under the Human Resources Code, §81.006(b)(3),
which provides the Texas Commission for the Deaf and Hard of Hearing with
the authority to adopt rules for administration and programs.
No other statute, code or article is affected by this adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 16, 2003.
TRD-200308599
David Myers
Executive Director
Texas Commission for the Deaf and Hard of Hearing
Effective date: January 5, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 407-3250
40 TAC §183.117
The Texas Commission for the Deaf and Hard of Hearing adopts
an amendment to §183.117, Figure 4, concerning Passing Scores with changes
to the proposal published in the September 5, 2003, issue of the
Texas Register
(28 TexReg 7673). The rule as adopted changes the method
of evaluating and reporting test results for individuals who take the Signing
Exact English (SEE) test. Results will be reported on a pass/fail basis rather
than exact grades given. The proposed amendments concerning the testing of
Morphemic Sign System (MSS) candidates will not be adopted.
The Commission has determined that reporting results on a pass/fail basis
will improve the program because evaluations will be performed in a more efficient
and effective manner.
Comments were received from the Amarillo Independent School District, the
Texhoma, Oklahoma, School District, and several individuals representing themselves
concerning the proposal to eliminate testing for MSS interpreters. The comments
were against the adoption of the amendment because the Morphemic Sign System
is in general use in the Amarillo area, and the deletion of certification
by the Commission would limit its future use and result in some individuals
not being able to communicate.
The Commission is in agreement with the comments and will not adopt the
proposed amendment to eliminate MSS testing.
The amendment is adopted under the Human Resources Code, §81.006(b)(3),
which provides the Texas Commission for the Deaf and Hard of Hearing with
the authority to adopt rules for administration and programs.
No other statute, code or article is affected by this adoption.
§183.117.Passing Scores.
The following table shows passing scores for the commission examinations.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on December 16, 2003.
TRD-200308600
David Myers
Executive Director
Texas Commission for the Deaf and Hard of Hearing
Effective date: January 5, 2004
Proposal publication date: September 5, 2003
For further information, please call: (512) 407-3250
Chapter 323.
COMMISSION
Part 6.
TEXAS COMMISSION FOR THE DEAF AND HARD OF HEARING
Subchapter B. BOARD CERTIFICATION EVALUATION
Part 11.
TEXAS COMMISSION ON HUMAN RIGHTS