1 TAC §§394.1 - 394.7
The Texas Health and Human Services Commission (HHSC) proposes
a new chapter concerning mediation and negotiated rulemaking, §§394.1
- 394.7.
Background and Purpose
The purpose of §394.1 and §394.2 is to define the terms employed
in the chapter and to set forth HHSC's policy regarding mediation and negotiated
rulemaking for all Texas health and human services (HHS) agencies. The purpose
of §394.3 is to note that mediation is offered by the HHSC Office of
Ombudsman, in contested cases, civil rights disputes and personnel actions.
The roles of the dispute resolution administrator and the various dispute
resolution coordinators are outlined in §394.4 and §394.5. The purpose
of §394.6 is to clarify the mediation process, addressing issues such
as confidentiality, costs, requirements of a mediation agreement and the voluntary
nature of the process. The factors to consider in deciding whether an agency
should consider employing negotiated rulemaking are set forth in §394.7.
Fiscal Note
Tom Suehs, Deputy Commissioner for Financial Services, has determined that
for the first five-year period the proposed sections are in effect, there
will be fiscal implications for state government or local governments as a
result of enforcing or administering the sections. The effect on state government
would be a cost of $131,878 for staff and mediation fees. HHSC has not found
that there would be any fiscal implications for local governments as a result
of enforcing or administering the system.
Public Benefit
Paul Leche, Special Counsel for Appeals, has determined that for each year
of the first five years the sections are in effect, the public benefit anticipated
as a result of Chapter 394 is that providers, employees and members of the
public will have alternative dispute resolution procedures available to them
in their dealings with HHS agencies. These procedures will allow for less
formal and expensive methods of resolving internal and external disputes.
The negotiated rulemaking provisions will offer HHS agencies the option of
this unique method of attaining consensus on proposed rules.
Small and Micro-Business Impact Analysis
There is no adverse economic effect on small or micro businesses as a result
of enforcing or administering the sections, because the proposal increases
flexibility for providers and does not add any new requirements for businesses.
There is no anticipated economic cost to persons who are required to comply
with the proposed sections. There is no anticipated effect on local employment
in geographic areas affected by these sections.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule"
as defined by Government Code, §2001.0225. "Major environmental rule"
is defined to mean a rule the specific intent of which is to protect the environment
or reduce risk to human health from environmental exposure and that may adversely
affect, in a material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a section of the state. This proposal is not specifically intended
to protect the environment or reduce risks to human health from environmental
exposure.
Takings Impact Assessment
Under §2007.003(b) of the Government Code, HHSC has determined that
Chapter 2007 of the Government Code does not apply to these rules. Accordingly,
HHSC is not required to complete a takings impact assessment regarding these
rules.
Public Comment
Questions about the content of this proposal may be directed to Paul Leche
at (512) 487-3325 in HHSC's System Legal Services Office. Written comments
on the proposal may be submitted to Paul Leche, Texas Health and Human Services
Commission, Mail Code 1100, 4900 North Lamar Blvd., Austin, Texas 78759, within
30 days of publication in the
Texas Register
.
Statutory Authority
The new rules are proposed under Government Code §531.033, which authorizes
the executive commissioner of HHSC to adopt rules necessary to carry out the
commission's duties.
The new chapter affects Government Code §531.0161.
§394.1.Definitions.
For purposes of this chapter:
(1)
"Mediation" means a method by which an impartial third
party facilitates communication between the parties to promote reconciliation
and settlement. It may include the use of early neutral evaluation in which
an impartial third party first evaluates the strengths and weaknesses of each
party's position in order to initiate mediation or any other form of informal
assistance that facilitates the settlement of disputes.
(2)
"Dispute" means any disagreement, complaint, contested
case, or other circumstances in which the Commission authorizes the use of
mediation. Disputes that may result in claims under Chapter 2260 of the Government
Code are conducted in accordance with the rules in 1 TAC Chapter 392, relating
to procurements by health and human services agencies.
(3)
"Impartial third party" or "mediator" means a person who
meets the qualifications and conditions under the Governmental Dispute Resolution
Act (Chapter 2009 of the Government Code) for impartial third parties.
(4)
"Commission" means the Texas Health and Human Service Commission.
(5)
"HHS agencies" means the Commission and all health and
human service agencies.
(6)
"DR Administrator" means the Commission's dispute resolution
manager.
(7)
"DR Coordinator" means the dispute resolution coordinator
for an area, program or agency.
(8)
"Negotiated rulemaking" means a process authorized by Chapter
2008 of the Government Code in which agency officials and representatives
of various affected interests meet in an attempt to develop a consensus regarding
proposed rules.
(9)
"Contested Case" has the meaning given in Government Code §2001.003.
§394.2.Policy.
(a)
Mediation. It is the Commission's policy to encourage the
voluntary use of appropriate alternative dispute resolution procedures at
the earliest stage possible to assist in resolving internal and external disputes
within the jurisdiction of the HHS agencies. Use of these procedures may resolve
the entire issue or a portion of the issue in controversy.
(b)
Negotiated Rulemaking. The Commission is committed to involving
the public to the greatest degree possible in the development of its rules.
One method to accomplish this is the use of negotiated rulemaking, which will
be employed when appropriate.
§394.3.Circumstances in Which Mediation is Offered.
(a)
An individual may request mediation through the Office
of the Ombudsman in order to resolve disputes related to HHS agency programs,
processes, staff or facilities. Mediation should be requested through the
Office of the Ombudsman when circumstances require assistance beyond the normal
health and human services procedures. The Office of the Ombudsman may use
informal means to facilitate settlement of disputes prior to employing formal
mediation processes.
(b)
Employees of HHS agencies may request mediation of grievances
or other workplace conflicts.
(c)
Employees of HHS agencies may request mediation of internal
civil rights or administrative complaints. The Civil Rights Office may use
informal means to facilitate settlement of disputes prior to referral to the
formal mediation process. The Civil Rights Office will coordinate referral
for formal mediation as appropriate.
(d)
Either party to a contested case involving an HHS agency
may request mediation.
§394.4.Dispute Resolution Administrator.
(a)
The Commission will designate a Dispute Resolution Administrator
to perform the following functions:
(1)
coordinate the implementation of the above policy;
(2)
serve as a resource for any training needed to implement
mediation or negotiated rulemaking;
(3)
collect data concerning the effectiveness of these procedures
as implemented by the HHS agencies; and
(4)
receive requests for mediation and identify impartial third
parties.
(b)
In the performance of these functions, the DR Administrator
will be responsible for:
(1)
providing information about available mediation procedures
to employees, regulated industry, and other potential users;
(2)
arranging for training and education necessary to foster
the implementation and use of mediation and negotiated rulemaking;
(3)
establishing a process to collect data on mediation and
to evaluate the mediation program; and
(4)
recommending policies, rules or rule amendments to implement
the policy.
§394.5.Dispute Resolution Coordinators.
Those programs and areas of the Commission that may be involved in
mediation will designate a Dispute Resolution Coordinator to perform the following,
part-time functions:
(1)
receive requests for mediation;
(2)
identify impartial third parties; and
(3)
coordinate with and assist the DR Administrator.
§394.6.Mediation Process.
(a)
Request for Mediation. Any request for the use of mediation
to resolve a dispute must be made in writing and submitted to the appropriate
Dispute Resolution Coordinator or Administrator except in contested cases,
where the request must be made to the administrative law judge. The request
must state the nature of the dispute and the parties involved. In determining
whether mediation is appropriate in a particular case, the following factors
may be considered:
(1)
whether there are potential outcomes and solutions that
are available only through mediation;
(2)
whether there is a reasonable likelihood that mediation
will result in an agreement;
(3)
whether a candid and confidential discussion among the
parties may help resolve the dispute;
(4)
whether negotiations between the parties have been unsuccessful
and could be improved with the assistance of an impartial third party; or
(5)
whether the use of mediation may use fewer resources and
take less time than other available procedures.
(b)
Voluntary Use of Mediation. Mediation will be employed
only if all parties to the dispute agree to its use. The only exceptions are
that upper management in an HHS agency may require employees to participate
in the management-directed mediation of a workplace conflict when no administrative
complaint or grievance has been filed, and may require a supervisor to participate
in the mediation of an administrative complaint filed by an employee under
his supervision.
(c)
Impartial Third Parties and Costs. For each case referred
for mediation, the parties must mutually agree on an impartial third party.
If the parties agree to use an impartial third party who charges for mediation
services, the costs for the impartial third party will be borne by the HHS
agency except in contested cases, in which the costs will be shared.
(d)
Agreement. All parties participating in a mediation are
expected to participate in good faith and with the authority to negotiate
and reach an agreement. The decision to reach an agreement is voluntary for
all parties. The resolution of a dispute reached as a result of mediation
must be in writing, signed by all parties, and is enforceable in the same
manner as any other written contract; provided, however, that any signed agreement
that purports to bind an HHS agency must be ratified by the appropriate agency.
Moreover, any such agreement may be subject to disclosure pursuant to Government
Code §2009.054(c).
(e)
Confidentiality. The confidentiality of the communications,
records, and conduct in a mediation will be as provided under Government Code §2009.054,
relating to the confidentiality of certain records and communications.
§394.7.Negotiated Rulemaking.
(a)
Use of Negotiated Rulemaking. Before considering whether
to propose the use of negotiated rulemaking, HHS agencies will consider whether,
to a significant degree, its use would:
(1)
be more likely to result in workable or reasonable regulations;
(2)
offer opportunity for a creative solution to regulatory
issues; or
(3)
decrease the likelihood of litigation.
(b)
The agency will make the final decision regarding the use
of negotiated rulemaking.
(c)
Process. HHS agencies will follow the process set forth
in Chapter 2008 of the Government Code.
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 June 23, 2005.
TRD-200502583
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: August 7, 2005
For further information, please call: (512) 424-6900