Proposed Rules Title 40

TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 2. DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES

CHAPTER 101. ADMINISTRATIVE RULES AND PROCEDURES

The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Assistive and Rehabilitative Services (DARS), proposes to amend the DARS rules in Title 40, Part 2, Chapter 101, Subchapter E, Appeals and Hearing Procedures for Vocational Rehabilitation and Independent Living Programs, by repealing the subchapter and replacing with new Subchapter J, Appeals and Hearing Procedures. The following divisions and sections in Title 40, Chapter 101, Subchapter E, are to be repealed: Chapter 101, Subchapter E, Division 1, §101.811 and §101.821; Division 2, §§101.851, 101.853, 101.855, 101.857, 101.859, 101.861, 101.863, 101.865, 101.867, 101.869, 101.871, 101.873, 101.875 101.877, 101.879, 101.881, and 101.883 and Division 3, §§101.901, 101.903, 101.905, 101.907, 101.909, and 101.911. The following new rules are proposed: Division 1, General Rules, §§101.7001, 101.7003, 101.7005, 101.7007, 101.7009, 101.7011, 101.7013, 101.7015, 101.7017, 101.7019, 101.7021, 101.7023, 101.7025, 101.7027, 101.7029, 101.7031, 101.7033, 101.7035, 101.7037, 101.7039, 101.7041, 101.7043, 101.7045, 101.7047 and 101.7049; Division 2, Division for Blind Services and Division for Rehabilitation Services, §§101.7051, 101.7053, 101.7055, 101.7057, 101.7059, 101.7061, 101.7063, 101.7065, 101.7067, 101.7069, 101.7071 and 101.7073; Division 3, Division for Early Childhood Intervention Services, §§101.8011, 101.8013 and 101.8015; and Division 4, Office for Deaf and Hard of Hearing Services, §§101.8051, 101.8053, 101.8055, 101.8057, 101.8059, 101.8061, 101.8063, 101.8065, 101.8067, 101.8069, 101.8071, 101.8073, 101.8075, 101.8077, and 101.8079.

In conjunction with this proposal, DARS proposed amendments to Chapter 101, Subchapters A, B, C, D, F and I in the June 20, 2008, issue of the Texas Register (33 TexReg 4825).

The proposal consolidates all DARS administrative hearing rules under Chapter 101, new Subchapter J, in compliance with HB 2292, 78th Legislature, Regular Session. New Subchapter J, Appeals and Hearing Procedures, is extensively restructured and expanded from three divisions to four divisions in order to add appeals and hearing procedures specific to the Division for Early Childhood Intervention Services and the Office for Deaf and Hard of Hearing Services.

In accordance with the requirements of Texas Government Code §2001.039, DARS has conducted a four-year review of Title 40, Chapter 101, Subchapter E, of the DARS rules. Notice of the proposed rule review of Title 40, Part 2, Chapter 101, including Subchapter E, was published in the November 30, 2007, issue of the Texas Register (32 TexReg 8863). DARS determined that the reasons for initially adopting these rules continue to exist. However, the rule review identified the need to repeal and replace Subchapter E with an extensively restructured and expanded new Subchapter J for the reasons detailed above.

The following sections in Title 40, Chapters 108 and 109, were published for repeal in the June 20, 2008, issue of the Texas Register (33 TexReg 4849):

Chapter 108, Subchapter B, §108.63. The content of this section as amended is being transferred to Chapter 101, Subchapter J, Division 3, as new §101.8011, and §101.8013 and §101.8015.

Chapter 109, Subchapter B, §§109.241, 109.243, and 109.245. The content of these sections as amended is being transferred to Chapter 101, Subchapter J, Division 4, as new §§101.8057, 101.8059, and 101.8061.

The following statutes and regulations authorize the proposed rule changes: The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq.; the regulations of the Department of Education, Rehabilitation Services Administration, 34 C.F.R. Parts 361, 363, 364, 365, 366, and 367, as amended; Texas Human Resources Code, Chapters 81, 82, 91 and 111; Texas Occupations Code, Chapter 53; The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq. and implementing regulations; 34 C.F.R. Part 303, as amended; and the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001, as amended.

Bill Wheeler, DARS Chief Financial Officer, estimates that for each year of the first five years that the rules are in effect, there will be no material fiscal implications for state or local government.

Mr. Wheeler also estimates that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of adopting the rules will be the agency's compliance with House Bill 2292, 78th Legislature, Regular Session, and other existing provisions of law pertaining to provision of health and human services in Texas.

Mr. Wheeler has also determined there should be no material economic cost to persons who are required to comply with the proposed rules. Further, in accordance with Government Code §2001.022, he has determined that the proposed rules will not affect a local economy, and, therefore, no local employment impact statement is required. Finally, Mr. Wheeler has determined that the proposed rules will have no adverse economic effect on small businesses or micro-businesses.

Written comments on the proposal may be submitted within 30 days of publication of this proposal in the Texas Register to Nancy Mikulencak, Rules Coordinator, Department of Assistive and Rehabilitative Services, 4800 North Lamar Boulevard, Suite 200, Austin, Texas 78756.

SUBCHAPTER E. APPEALS AND HEARING PROCEDURES FOR VOCATIONAL REHABILITATION AND INDEPENDENT LIVING PROGRAMS

DIVISION 1. GENERAL RULES

40 TAC §101.811, §101.821

(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 Department of Assistive and Rehabilitative Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed pursuant to HHSC's statutory rulemaking authority under Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§101.811.Motion for Reconsideration.

§101.821.Civil Action.

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 16, 2008.

TRD-200803074

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 424-4050

DIVISION 2. DIVISION FOR BLIND SERVICES APPEALS AND HEARING PROCEDURES

40 TAC §§101.851, 101.853, 101.855, 101.857, 101.859, 101.861, 101.863, 101.865, 101.867, 101.869, 101.871, 101.873, 101.875, 101.877, 101.879, 101.881, 101.883

No other statute, article, or code is affected by this proposal.

§101.851.Purpose and Scope.

§101.853.Legal Authority and Scope.

§101.855.Definitions.

§101.857.Filing a Request for Review.

§101.859.Assignment of Impartial Hearing Officer.

§101.861.Powers and Duties of the Impartial Hearing Officer.

§101.863.Reasonable Accommodations.

§101.865.Failure To Attend Hearing and Default.

§101.867.Witness Fees.

§101.869.Dismissal Without Hearing.

§101.871.Discovery.

§101.873.Order of Proceedings.

§101.875.Transcription of Proceedings.

§101.877.Documentary Evidence and Official Notice.

§101.879.Pleadings.

§101.881.Impartial Hearing Officer Decision.

§101.883.Mediation Procedures.

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 16, 2008.

TRD-200803075

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 424-4050

DIVISION 3. DIVISION FOR REHABILITATION SERVICES APPEALS AND HEARING PROCEDURES

40 TAC §§101.901, 101.903, 101.905, 101.907, 101.909, 101.911

No other statute, article, or code is affected by this proposal.

§101.901.Purpose and Scope.

§101.903.Definitions.

§101.905.General Requirements.

§101.907.Mediation and Due Process Hearings.

§101.909.Finality of the Hearing Officer's Decision.

§101.911.Time for Hearing.

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 16, 2008.

TRD-200803076

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 424-4050

SUBCHAPTER J. APPEALS AND HEARING PROCEDURES

DIVISION 1. GENERAL RULES

40 TAC §§101.7001, 101.7003, 101.7005, 101.7007, 101.7009, 101.7011, 101.7013, 101.7015, 101.7017, 101.7019, 101.7021, 101.7023, 101.7025, 101.7027, 101.7029, 101.7031, 101.7033, 101.7035, 101.7037, 101.7039, 101.7041, 101.7043, 101.7045, 101.7047, 101.7049

The new rules are proposed pursuant to HHSC's statutory rulemaking authority under Government Code, Chapter 531, §531.0055(e), which provides the Executive Commissioner of HHSC with the authority to promulgate rules for the operation and provision of health and human services by health and human services agencies.

No other statute, article, or code is affected by this proposal.

§101.7001.Purpose and Scope.

(a) This chapter establishes procedures:

(1) in Division 1 of this subchapter, that govern generally all administrative hearings and appeals;

(2) in Division 2 of this subchapter, that govern appeals concerning the vocational rehabilitation services, independent living and comprehensive rehabilitation programs of the Division for Blind Services and Division for Rehabilitation Services;

(3) in Division 3 of this subchapter, that govern hearings concerning the provision of appropriate early intervention services to a child or child's family; and

(4) in Division 4 of this subchapter, that govern hearings concerning the suspension, revocation or probation of a certificate holder's certificate granted under the provisions of Chapter 81, Human Resources Code, and Chapter 57, Government Code.

(b) The provisions of this subchapter shall not be construed so as to enlarge, diminish, modify, or alter the jurisdiction, powers, or authority of the Department or the substantive rights of any person.

(c) A person's decision to seek an informal resolution under Divisions 2 and 4 of this subchapter, of matters about which the person is dissatisfied shall not prevent, compromise, or delay the person's access to formal resolution procedures in this subchapter.

§101.7003.Legal Authority.

The following statutes and regulations authorize the procedures established by this subchapter:

(1) The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq., and regulations of the Department of Education, 34 CFR Part 361, 362, 363, 364, 365, and 367 as amended;

(2) Texas Human Resources Code, Chapter 91 (concerning vocational rehabilitation services for the blind and visually-impaired);

(3) Texas Human Resources Code, Chapter 111 (concerning vocational rehabilitation services for the disabled);

(4) The Individuals with Disabilities Education Act, as amended, 20 U.S.C. §1400 et seq., and 34 C.F.R. §303.1 et seq., as amended (concerning early intervention services for children with disabilities and developmental delays);

(5) Texas Administrative Procedure Act, Texas Government Code, Chapter 2001, as amended;

(6) Texas Human Resources Code, Chapters 81 and 82 (concerning services for the deaf); and

(7) Texas Government Code, Chapter 57 (concerning court interpreter certification program for interpreters for hearing-impaired individuals).

§101.7005.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise. The use of the singular or plural case is not meant to be limiting unless the context clearly indicates otherwise.

(1) Act--The Rehabilitation Act of 1973 as amended, 29 U.S.C. Section 701, et seq.

(2) Appellant--An applicant, eligible individual, authorized representative, or parent who has initiated formal procedures under this subchapter.

(3) Applicant--A person who has applied for services but for whom an eligibility determination has not been made.

(4) Authorized representative--An attorney authorized to practice law in the State of Texas, or a person designated by a party to represent the party in hearing procedures. The term includes a parent or a person made legally responsible for the child by a court of competent jurisdiction.

(5) Commissioner--The chief executive officer of the Department of Assistive and Rehabilitative Services.

(6) Consumer--The term "consumer" refers to and includes a person who:

(A) under Division 2 of this subchapter, has been determined eligible for and is receiving services from the Department;

(B) under Division 3 of this subchapter, is a parent, child or the child's family; or

(C) under Division 4 of this subchapter, not only has been determined eligible for and receiving services from the Department, but is also an individual defined by §101.8055(d) of this subchapter (relating to Definitions).

(7) Department--The Department of Assistive and Rehabilitative Services (also referred to as "DARS"), its officers, employees, and agents.

(8) Discovery--The process by which a party, prior to any final hearing on the merits, may obtain evidence and other information which is relevant to a claim or defense in the appeal.

(9) Eligible individual--Any individual person determined by the Department to be eligible to receive vocational rehabilitation services.

(10) Hearing--A formal review conducted under this chapter. This term includes pre-hearing conferences.

(11) Impartial hearing officer (IHO)--A person who is appointed to conduct a hearing under this chapter.

(12) Parent--

(A) Under Division 2 of this subchapter, the term "parent" whether in the singular or plural shall mean a minor child's natural or adoptive parent, the spouse of the minor child's natural or adoptive parent, or the minor child's surrogate or foster parent, or the spouse of the surrogate or foster parent, or other person made legally responsible for the minor child by a court of competent jurisdiction.

(B) Under Division 3 of this subchapter, the meaning of term "parent" shall be the same as that in 34 C.F.R. §303.19.

(13) Party--A person or agency named or admitted to participate in a formal hearing.

(14) Person--Any individual, representative, corporation, or other entity, including any public or nonprofit corporation, or agency or instrumentality of federal, state, or local government.

(15) Record--The official record of a hearing, including all arguments, briefs, pleadings, motions, intermediate rulings, orders, evidence received or considered, statements of matters officially noticed, questions and offers of proof, objections and rulings on objections, proposed findings of fact, conclusions of law, hearing officer decision, any other decision, opinion, or report by the hearing officer or commissioner, and all Department memoranda or data, including consumer and applicant files, submitted to or considered by the impartial hearing officer.

§101.7007.Filing a Request for Review.

(a) Persons who may file a Request for Review.

(1) Under Division 2 of this subchapter, an applicant or eligible individual who is dissatisfied with a determination made by the staff of the Department that affects the provision of vocational rehabilitation services may request a review of the determination.

(2) Under Division 3 of this subchapter, a parent may initiate a hearing involving the identification, evaluation, or placement of or the provision of appropriate early intervention services to a child or child's family.

(3) Under Division 4 of this subchapter, a certificate holder.

(b) A request for a review brought:

(1) under Division 2 of this subchapter, shall be filed, as provided in §101.7059 of this subchapter (relating to Filings) with the Hearings Coordinator, DARS Legal Services;

(2) under Division 3 of this subchapter, shall be filed, as provided in §101.8015 of this subchapter (relating to Appeal of Final Decision) with the assistant commissioner for ECI or, with the Hearings Coordinator, DARS Legal Services, if that assistant commissioner so delegates; and

(3) under Division 4 of this subchapter, shall be filed as provided in §101.8063 and §101.8065 of this subchapter (relating to Filing a Request for Hearing and Filings).

§101.7009.Time for Hearing.

A hearing conducted under Division 2 of this subchapter, by an impartial hearing officer, selected in accordance with this Division 1, will be held within 60 days of an applicant's or eligible individual's request for review of a determination made by the Department that affects the provision of vocational rehabilitation services to the individual, unless informal resolution or a mediation agreement is achieved prior to the 60th day or the parties agree to a specific extension of time.

§101.7011.Assignment of Impartial Hearing Officer.

(a) The Department's authorized representative shall select, on a random basis, or by agreement between the Department's representative and the appellant, or if appropriate, the appellant's authorized representative or a parent, an impartial hearing officer from a pool of persons qualified according to these rules.

(b) The impartial hearing officer shall be an individual who:

(1) is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education);

(2) has knowledge of the delivery of vocational rehabilitation services, the state plan, and the federal and state regulations governing the provision of services for appeals under Division 2 of this subchapter;

(3) has received training specified by the Department with respect to the performance of official duties; and

(4) has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual.

(c) An individual is not considered to be an employee of a public agency for the purposes of subsection (b) of this section solely because the individual is paid by the agency to serve as a hearing officer.

(d) In addition to those qualifications in subsections (a) - (c) of this section, an impartial hearing officer who conducts hearings under Division 3 of this subchapter must have knowledge about the provisions of the Individuals with Disabilities Education Act; the rules promulgated under that act; and services available for eligible children and their families.

§101.7013.Powers and Duties of Impartial Hearing Officer.

(a) The impartial hearing officer shall have the authority and duty to:

(1) conduct a full, fair, and impartial hearing;

(2) take action to avoid unnecessary delay in the disposition of the proceeding; and

(3) maintain order.

(b) The impartial hearing officer has the power to regulate the course of the hearing, including the power to:

(1) administer oaths;

(2) take testimony;

(3) rule on questions of evidence;

(4) rule on discovery issues;

(5) issue orders relating to hearing and pre-hearing matters, including orders granting motions to subpoena witnesses and imposing non-monetary sanctions regarding discovery;

(6) admit or deny party status;

(7) limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations;

(8) grant continuance(s);

(9) request parties to submit legal memoranda, proposed findings of fact, and conclusions of law; and

(10) issue decisions based on findings of fact and conclusions of law.

(c) Unless required for the disposition of ex parte matters authorized by law, the impartial hearing officer may not directly or indirectly communicate in connection with any issue of fact or law with the commissioner or any party or a party's authorized representative, except on notice and opportunity for each party to participate.

(d) The authority of the impartial hearing officer concerning any discovery under subsection (b) of this section is subject to the authority granted by these rules or the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001.

§101.7015.Substitution of Impartial Hearing Officer.

(a) If for any reason an impartial hearing officer is unable to continue presiding over a pending hearing, or issue a decision after the conclusion of the hearing, another impartial hearing officer shall be designated as a substitute to complete the hearing and render a decision in accordance with these rules.

(b) The substitute impartial hearing officer may use the existing record and may conduct further proceedings as are necessary and proper to conclude the hearing and render a decision.

§101.7017.Reasonable Accommodations.

(a) Any hearing or proceedings conducted under this subchapter shall be held, whenever feasible, by telephone, but at a time and place reasonably accessible either to the appellant or the certificate holder and any witnesses, and convenient for parties. In considering the physical location of a hearing or proceeding, the impartial hearing officer shall consider, among other factors:

(1) the suitability of any proposed facilities for a hearing, including such accommodations as the ability either of the appellant or the certificate holder and any witnesses to gain physical access to the facilities; and

(2) the comparative distances and times required to travel from places of work or residence to a proposed hearing location by parties and witnesses.

(b) The Department shall, upon reasonable notice, provide the appellant with readers or interpreters during proceedings conducted pursuant to this subchapter. Reasonable notice shall be considered to be no fewer than five working days prior to the proceeding unless good cause for a shorter period of time shall exist in the judgment of the impartial hearing officer.

(c) A copy of a transcript prepared during hearing proceedings and all notices and documents shall be provided to the appellant in an accessible format upon request.

§101.7019.Appearance of Parties at Hearings; Representation.

(a) An individual may represent himself or herself.

(b) A party may be represented by an attorney authorized to practice law in Texas or by any other representative authorized by the party to represent him or her.

(d) A party's authorized representative remains the representative of record in absence of a formal request to withdraw and an order approving such withdrawal issued by the impartial hearing officer.

(e) The Department is not responsible for expenses incurred by appellants seeking remedy through this subchapter, and representation and attorney fees and related expenses are the responsibility of the individual parties.

§101.7021.Failure to Attend Hearing and Default.

If, after receiving a notice of a hearing, a party or the party's authorized representative fails to attend a hearing, the impartial hearing officer may proceed and, where appropriate, may issue a default decision against the absent party.

§101.7023.Witness Fees.

(a) Any witness or deponent who is not a party to and who is subpoenaed or otherwise appears at any hearing or proceeding at the instance of the Department is entitled to receive reimbursement as provided in the Texas Government Code, §2001.103.

(b) The Department is not responsible for expenses incurred by any witness or deponent who is not a party to and who is subpoenaed or otherwise appears at any hearing or proceeding at the instance of the appellant.

(c) The party calling or deposing an expert witness shall be responsible for all fees and expenses charged by the expert witness.

§101.7025.Pre-hearing Conferences.

(a) The impartial hearing officer may hold a pre-hearing conference to resolve matters preliminary to the hearing. At the discretion of the impartial hearing officer, a pre-hearing conference may be held by telephone.

(b) A pre-hearing conference may be convened to address any or all of the following matters:

(1) notice or jurisdiction;

(2) scope or party status;

(3) location of hearing;

(4) factual and legal issues;

(5) motions;

(6) issuance of subpoenas;

(7) discovery disputes;

(8) scheduling;

(9) stipulations;

(10) settlement conferences;

(11) requests for official notice;

(12) identification and exchange of documentary evidence;

(13) admissibility of evidence;

(14) identification and qualification of witnesses;

(15) order of presentation; and

(16) such other matters as shall promote the orderly and prompt conduct of the hearing.

§101.7027.Dismissal Without Hearing.

(a) The impartial hearing officer may entertain motions for dismissal without a hearing for the following reasons:

(1) failure to pursue the hearing;

(2) unnecessary duplication of proceedings, res judicata, or collateral estoppel;

(3) withdrawal of the request for hearing;

(4) moot questions;

(5) lack of jurisdiction;

(6) failure to raise a material issue in the pleading; and

(7) failure of a party or authorized representative to appear at a scheduled hearing.

(b) If the impartial hearing officer finds that such motion should be granted, the impartial hearing officer may enter a final order of dismissal.

§101.7029.Conduct of Hearing.

(a) On a genuine issue in a contested case, each party or authorized representative is entitled to:

(1) call witnesses, including parties;

(2) offer evidence;

(3) cross-examine any witness called by another party; and

(4) make opening and closing statements.

(b) Once the hearing is begun, the parties and authorized representatives may be off the record only when the impartial hearing officer permits. If the discussion off the record is pertinent, then the impartial hearing officer will summarize the discussion for the record.

(d) The impartial hearing officer may continue a hearing from time to time and from place to place. If the time and place for the proceeding to reconvene are not announced at the hearing, a notice shall be mailed stating the time and place of hearing.

(e) The impartial hearing officer may question witnesses and parties and/or direct the submission of supplemental evidence.

§101.7031.Order of Proceedings.

(a) A case shall be called to order by the impartial hearing officer.

(b) Proceedings under Divisions 2 and 3 of this subchapter shall be conducted according to the following:

(1) The appellant may state briefly the nature of the claim or defense, what the appellant expects to prove, and the relief sought. Immediately thereafter, the Department may make a similar statement, and any other parties will be afforded similar rights as determined by the impartial hearing officer. The impartial hearing officer may limit the time available for each party or authorized representative with respect to such statement.

(2) Evidence shall then be introduced by the appellant. The Department, or the Department's authorized representative, and any other parties shall have the opportunity to cross-examine each of the appellant's witnesses.

(3) Cross-examination is not limited solely to matters raised on direct examination. Parties or authorized representatives are entitled to redirect and recross-examination.

(4) Unless the statement has already been made, the Department or the Department's authorized representative may briefly state the nature of the claim or defense, what the Department expects to prove, and the relief sought.

(5) Evidence, if any, shall be introduced by the Department. The appellant and any other parties shall have the opportunity to cross-examine each of the Department's witnesses.

(6) Any other parties may make statements and introduce evidence. The appellant and the Department shall have opportunity to cross-examine the other parties' witnesses.

(7) The parties may present rebuttal evidence.

(8) The parties may be allowed to make either oral or written closing statements at the discretion of the impartial hearing officer.

(9) The impartial hearing officer may examine any witness and party.

(c) The order of proceedings set out in subsection (b) of this section shall apply to proceedings under Division 4 of this subchapter, except that the Department shall bear the burden of proof and shall be entitled to present its case first subject to cross-examination by the certificate holder and any other parties. Once the Department rests, the certificate holder may present the certificate holder's case.

(d) The impartial hearing officer may permit deviations from this order of procedure in the interest of justice or to expedite the proceedings.

(e) Parties shall provide four copies of each exhibit offered.

(f) Burden of proof. The party seeking affirmative relief, either on the case as a whole or on an issue, shall bear the burden of proof to prove the affirmative of the issue, or the party's case as a whole, by a preponderance of the evidence. In cases brought under Division 4 of this subchapter, the Department shall bear the burden of proof.

§101.7033.Rules of Evidence.

(a) The rules of evidence as applied in nonjury civil cases by the district courts of the state of Texas shall apply to a hearing under this subchapter.

(b) Exceptions: evidence inadmissible under the rules of evidence applied in nonjury civil cases by the district courts of the state of Texas may be admitted:

(1) if it consists of any documents contained in any file of the Department related to the appellant; or

(2) if it is:

(A) necessary to ascertain the facts not reasonably susceptible of proof under those rules;

(B) not precluded by statute; and

§101.7035.Transcription of Proceedings.

(a) Unless precluded by law, the hearing shall be recorded electronically by tape recorder or similar device either by the IHO or by someone designated by the IHO. Such tape recording shall be the official record of the testimony adduced during the hearing. Any party, however, may request, at the party's expense, that the hearing be recorded by a court reporter if the request is made within ten (10) days of the date for the hearing.

(b) In lieu either of a recording of the testimony electronically or of the reporting of testimony by a court reporter, the parties to a hearing may agree upon a statement of the evidence, agree to use taped transcriptions as a statement of the testimonial evidence, or agree to the summarization of testimony before the hearing officer; provided, however, that proceedings or any part of them must be transcribed on written request of any party.

(c) Unless otherwise provided in this subchapter, the party requesting a transcription of any electronic recording of the proceedings shall bear the cost for the transcribing of any such electronically recorded testimony. Nothing provided for in this section limits the Department to a stenographic record of the proceedings.

§101.7037.Prepared Testimony.

In all proceedings and after service of copies upon all parties of record at such time as may be designated by the impartial hearing officer, the prepared testimony of a witness upon direct examination, either in narrative or question and answer form, may be incorporated in the record as if read or received as an exhibit, upon the witness's being sworn and identifying the same. Such witness shall be subject to cross-examination and the prepared testimony shall be subject to a motion to strike in whole or in part.

§101.7039.Pleadings

(a) In a formal appeal, all pleadings, for which no other form is prescribed, shall contain:

(1) the name of the party making the pleading;

(2) the names of all other known parties;

(3) a concise statement of the facts alleged and relied upon;

(4) a prayer stating the type of relief, action, or order desired;

(5) any other matter required by law;

(6) a certificate of service, as required by these rules; and

(7) the signature of the party or the party's authorized representative making the pleading.

(b) Any pleading filed pursuant to a formal appeal may be amended up to 14 days prior to the hearing. Amendments filed after that time shall be accepted at the discretion of the impartial hearing officer.

(c) Any pleading may adopt and incorporate, by specific reference thereto, any part of any document or entry in the official files and records of the Department.

(d) All pleadings relating to any matter pending before the Department shall be filed with the impartial hearing officer and all parties.

(e) All pleadings shall be in a format and medium reasonably calculated to provide the required information and must be clear and legible.

(f) Pleadings shall contain the name, address, and telephone number of the party filing the document or the name, telephone number, and business address of the authorized representative.

(g) The party or the party's authorized representative filing the pleading shall include a signed certification that a true and correct copy of the pleading has been served on every other party.

§101.7041.Continuance.

(a) The impartial hearing officer, at his or her discretion, may grant a continuance to further the interests of justice. No motion for continuance shall be granted, unless it is made in writing or stated in the record, and the motion shall set forth the specific grounds upon which the party seeks the continuance.

(b) Unless made during a pre-hearing or hearing, a party seeking a continuance, cancellation of a scheduled proceeding, or extension of an established deadline must file such motion no later than 10 days before the date or deadline in question. A motion filed fewer than 10 days before the date or deadline in question must contain a certification that the movant contacted the other party or party's authorized representative and whether or not it is opposed by the party or party's authorized representative. Further, if a continuance to a certain date is sought, the motion must include a proposed date or dates and must indicate whether the other party or party's authorized representative contacted agrees on the proposed new date or dates.

§101.7043.Motion for Reconsideration.

(a) Any party to a hearing may file a motion for reconsideration within 20 days after the party is notified of the issuance of the decision of the impartial hearing officer. The motion shall be filed as follows:

(1) for hearings held under Divisions 2 and 4 of this subchapter with the Hearings Coordinator, DARS Legal Services, and

(2) for hearings held under Division 3 of this subchapter with the Assistant Commissioner for ECI, or with the Hearings Coordinator, DARS Legal Services, if the Assistant Commissioner so designates.

(b) The motion for reconsideration must specify the matters in the decision of the impartial hearing officer which the party considers to be erroneous. Any response to the motion for reconsideration must be filed no later than thirty days after a party, or a party's attorney or representative, is notified of the issuance of the decision of the impartial hearing officer.

(c) The impartial hearing officer shall rule on the motion for reconsideration no later than 15 days after receipt of the motion, or after receipt of the response to the motion for reconsideration, whichever comes later. If the motion is granted, the IHO shall issue a decision upon reconsideration within an additional 15 days. If the impartial hearing officer fails to rule on the motion for reconsideration within 15 days, the motion is denied as a matter of law.

(d) Service. Service of the impartial hearing officer's decision or of a motion or response under this section shall be made by any of the following means to a party, a party's attorney, or representative:

(1) hand-delivery;

(2) courier-receipted delivery;

(3) regular first-class mail, certified, or registered mail;

(4) email or facsimile transmission before 5:00 p.m. on a business day to the recipient's current email address or telecopier number; or

(5) such other means as the impartial hearing officer may direct.

(e) Date of service. The date of service is the date of hand-delivery, of delivery by courier, of mailing, of emailing, or of facsimile transmission, unless otherwise required by law. Unless the contrary is shown, a decision, motion, or response that is sent by regular first-class mail shall be presumed to have been received within three (3) days of the date of post-marking, if enclosed in a wrapper addressed to the recipient's last known address with return address to the sender, stamped with the appropriate first-class postage, and deposited on the date post-marked with the U.S. Postal Service.

§101.7045.Civil Action.

(a) Any party who disagrees with the findings and decision of an impartial hearing officer has a right to bring a civil action in any court of competent jurisdiction without regard to the amount in controversy.

(b) A person must initiate a civil action for review of a decision of an impartial hearing officer by filing a petition not later than the thirtieth day after the date on which the decision that is the subject of complaint is final and appealable.

§101.7047.Mediation Procedures.

(a) An applicant, eligible individual, or parent who has initiated a proceeding under this subchapter may request mediation to resolve the dispute. The Department, with the consent of the applicant, eligible individual, or parent, may also originate the request for mediation.

(b) Mediation shall be voluntary on the part of the parties; must not be used to deny or delay the right of an individual to a hearing under this subchapter; or to deny any other right afforded by the Rehabilitation Act; and shall be conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(d) Upon receiving a request for mediation from the parties, the Hearings Coordinator shall select an individual from a list of qualified mediators who are knowledgeable in laws and regulations relating to the provision of vocational rehabilitation, independent living services, comprehensive rehabilitation services, or the provision of services by Early Childhood Intervention Services, whichever may be applicable to the dispute.

(e) Sessions in the mediation process shall be coordinated by the mediator in a timely manner at a location convenient to both parties in the dispute.

(f) All discussions that occur during the mediation sessions are confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The mediator may require the parties to sign a confidentiality pledge prior to the commencement of the mediation process.

(g) Any agreement reached through the mediation process shall be documented in a written mediation agreement and signed by the parties to the dispute. The agreement then becomes a part of the consumer record.

§101.7049.Computation of Time.

(a) In computing any period of time prescribed or allowed by the rules in this subchapter, by order of an IHO, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not be included.

(b) Unless otherwise provided by the rules in Subchapter J of this chapter, the last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in the rules under Subchapter J of this chapter.

(c) In computing the time periods required for filing a motion for reconsideration (§101.7043 of this subchapter (relating to Motion for Reconsideration)) and for appealing to a court of competent jurisdiction, a final decision of an IHO (§101.7045 of this subchapter (relating to Civil Action)), Saturdays, Sundays and legal holidays shall be included.

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 16, 2008.

TRD-200803077

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 424-4050

DIVISION 2. DIVISION FOR BLIND SERVICES AND DIVISION FOR REHABILITATION SERVICES

40 TAC §§101.7051, 101.7053, 101.7055, 101.7057, 101.7059, 101.7061, 101.7063, 101.7065, 101.7067, 101.7069, 101.7071, 101.7073

No other statute, article, or code is affected by this proposal.

§101.7051.Purpose and Scope.

(a) This Division 2 establishes procedures under which an applicant or eligible person may appeal a determination made either by the Division for Blind Services or by the Division for Rehabilitation Services that affects the provision of vocational rehabilitation services, independent living services and comprehensive rehabilitation services for that applicant or eligible person.

§101.7053.Legal Authority and Scope.

(a) The following statutes and regulations authorize the procedures established by the chapter:

(1) The Rehabilitation Act of 1973, as amended, 29 U.S.C. §701 et seq. and regulations of the Department of Education, Rehabilitation Services Administration, 34 C.F.R §361.57 et seq., as amended.

(2) Texas Human Resources Code Chapter 91 (concerning vocational rehabilitation services for the blind and visually-impaired);

(3) Texas Human Resources Code Chapter 111 (concerning vocational rehabilitation services for the disabled); and

(4) Texas Administrative Procedure Act, Texas Government Code, Chapter 2001, as amended.

(b) The procedures in this Division 2 of this subchapter, apply to those determinations that concern the denial, reduction, suspension or termination of vocational rehabilitation services, independent living or comprehensive rehabilitation services by the Department and are available to any applicant or consumer who is dissatisfied with a determination made by staff of the Department.

(c) Ineligibility. The following may challenge a determination of ineligibility through the procedures of this Division 2:

(1) applicants who are found ineligible for vocational rehabilitation services; and

(2) previously eligible individuals who have been determined no longer eligible for vocational rehabilitation services under 34 C.F.R. §361.43.

(d) Unless a decision concerns the denial, reduction, suspension or termination of services, or concerns the nature or content of a consumer's Individualized Plan of Employment, or the delivery or quality of vocational counseling services or other services provided by DARS, decisions made in the course of providing services by the Department's staff are not determinations subject to review by appeal under the procedures of this subchapter.

(e) A person's decision to seek an informal resolution to matters about which the person is dissatisfied shall not prevent, compromise, or delay the person's access to formal resolution procedures in this Division 2.

(f) The Department shall not institute a suspension, reduction, or termination of vocational rehabilitation services being provided to an applicant or eligible individual, including evaluation and assessment services and the development of an Individualized Plan of Employment, pending a resolution of an applicant or eligible individual's appeal by mediation or hearing unless:

(1) the applicant or eligible individual requests a suspension, reduction or termination of services; or

(2) the Department has evidence that the applicant or eligible individual obtained the services through misrepresentation, fraud, collusion, or criminal conduct.

§101.7055.Definitions.

The words and terms defined in §101.7005 of this subchapter (relating to Definitions), when used in this Division 2, shall have the same meanings unless the context clearly indicates otherwise. The use of the singular or plural case is not meant to be limiting unless the context clearly indicates otherwise.

§101.7057.Filing a Request for Review.

(a) Any applicant or eligible individual, who is dissatisfied with a determination as described in §101.7053 of this subchapter (relating to Legal Authority and Scope) made either by the Division for Blind Services or the Division for Rehabilitation Services, may request a review of the determination. Although no prescribed form is required to file a request, preprinted forms for this purpose shall be maintained in every Department office and are available upon request.

(b) The request for a review shall be filed in writing with the Hearings Coordinator, DARS Legal Services.

(1) A request shall be considered filed on the day that it is received by the Hearings Coordinator.

(2) Preprinted forms for this purpose are available upon request either from the Hearings Coordinator, DARS Legal Services, or from any Department office.

(c) Upon receiving a request for review, the Hearings Coordinator, DARS Legal Services, shall, no later than the next working day, mail the appellant:

(1) the name, address, and phone number of the Client Assistance Program established pursuant to federal law;

(2) the name of the impartial hearing officer appointed to hear the appeal, and the date, time and place of any pre-hearing;

(3) a copy of applicable hearing procedures; and

(4) notice that the appellant has the right to request mediation procedures.

(d) Timeliness of a request for review. A request shall be considered timely if it is received by the Department no later than 180 days from the date of the determination which is the subject of an applicant or eligible individual's request for review.

§101.7059.Filings.

(a) All filings shall be sent to the Department, 4800 North Lamar, Suite 300, Austin, Texas 78756, with the notation "Attention: Hearings Coordinator," or delivered to the Department at that address.

(b) A copy of all filings shall be sent by mail or otherwise delivered to all parties.

(c) A certificate of service, signed by the person making the filing, showing the manner of service, stating that the filing has been served on all other parties, and identifying those parties shall be contained in or attached to all filings. The certificate is prima facie evidence of service.

§101.7061.Discovery and Mandatory Disclosures.

(a) Written Discovery. Requests for disclosure of information shall be the only form of written discovery which the parties shall be entitled to make. Unless a party is ordered by the IHO during a pre-trial conference to disclose other information in addition to the items in this section, a party may request in writing that the other party disclose or produce the following:

(1) the names, addresses and phone numbers of persons having knowledge of relevant facts, including those who might be called as witnesses and any expert who might be called to testify;

(2) for any testifying expert:

(A) the subject matter on which the expert will testify;

(B) the expert's resume; and

(C) a brief summary of the substance of the expert's mental impressions and opinions and the basis for them; and all documents and tangible things reflecting such information;

(3) the issues and in general the factual basis for a party's claims and defenses in the appeal; and

(4) information concerning appellant's employment, including the appellant's job application with the appellant's current employer and any personnel evaluations.

(b) Subject to the provisions in this section, parties may obtain discovery regarding any matter which is relevant to a claim or defense in the appeal.

(d) All disputes with respect to any discovery matter shall be filed with and resolved by the impartial hearing officer.

(e) All parties shall be afforded a reasonable opportunity to file objections and motions to compel with the impartial hearing officer regarding any and all discovery requests.

(f) Copies of discovery requests and documents filed in response thereto shall be filed on all parties, but should not be filed with the impartial hearing officer or the Hearings Coordinator unless directed to do so by the impartial hearing officer or when in support of objections, motions to compel, motions for protective order, or motions to quash.

(g) Any documents contained in any file of the Department related to the appellant are to be deemed admissible. The Department must, without awaiting either an order or a discovery request under subsection (a) of this section, provide to the appellant a complete copy of the appellant's record of services, as described in 34 CFR §361.47, including any electronically-stored or preserved records.

§101.7063.Documentary Evidence and Official Notice.

(a) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. On request, parties shall be given an opportunity to compare the original and the copy or excerpts.

(b) When numerous similar documents which are otherwise admissible are offered into evidence, the impartial hearing officer may limit the documents received to those which are typical and representative. The impartial hearing officer may also require that an abstract of relevant data from the documents be presented in the form of an exhibit, provided that all parties be given the right to examine the documents from which such abstracts were made.

(1) The Rehabilitation Act of 1973, as amended, 29 United States Code §701, et seq.;

(2) Division of Education regulations, 34 Code of Federal Regulations, Parts 361, 362, 363, 364, 365, and 367;

(3) Texas Human Resources Code, Chapter 91 and Chapter 111;

(4) Department of Assistive and Rehabilitative Services, Division for Blind Services' and Division for Rehabilitation Services' State Plan for Vocational Rehabilitation Services;

(5) Department of Assistive and Rehabilitative Services, Division for Blind Services, Vocational Rehabilitation and Independent Living Manuals; and Division for Rehabilitation Services, Rehabilitation Policy Manual;

(6) Texas Administrative Code, Title 40, Part 2, Department of Assistive and Rehabilitative Services.

(d) Official notice also may be taken of:

(1) all facts that judicially cognizable; and

(2) generally recognized facts within the area of the Department's specialized knowledge.

§101.7065.Impartial Hearing Officer Decision.

(a) Within 30 days of the hearing completion date, the impartial hearing officer shall issue a decision that is based on the evidence and which is consistent with the provisions of the approved state plan, the Rehabilitation Act of 1973, as amended, federal vocational rehabilitation regulations, and state regulations and policies that are consistent with federal requirements, and shall provide to the appellant or, if appropriate, the appellant's authorized representative, and the Department's authorized representative or DARS Legal Services, as appropriate, a full written report of the findings of fact, conclusions of law, and any other grounds for the decision.

(b) The hearing completion date shall be that date upon which the impartial hearing officer receives the transcript, if any was prepared, of the oral hearing, or, if no transcript was prepared, the date of the adjournment of the hearing.

(d) The impartial hearing officer may prescribe such remedies as are appropriate within the scope of, and permitted by, the Human Resources Code, Chapters 91 and 111; Rehabilitation Act; the regulations of Rehabilitation Services Administration of the Department of Education; and the Department's policies and rules.

(1) The impartial hearing officer may not award restitutionary, compensatory or monetary relief, including monetary damages to any party.

(2) The impartial hearing officer may not prescribe an action affecting the employment of an employee of the Department.

§101.7067.Finality of the Hearing Officer's Decision.

The decision of the impartial hearing officer shall be the Department's final decision, and, unless a timely motion for reconsideration is filed, that decision becomes the final decision of the Department.

§101.7069.Implementation of Final Decision.

If a party brings a civil action to challenge a final decision of a hearing officer, the final decision involved shall be implemented pending review by the court.

§101.7071.Motion for Reconsideration.

Either party to a hearing may file a motion for reconsideration with the Hearings Coordinator, DARS Legal Services, as provided in §101.7043 of this subchapter (relating to Motion for Reconsideration).

§101.7073.Appeal of Final Decision.

A party aggrieved by a final decision may bring an action for judicial review as provided in §101.7045 of this subchapter (relating to Civil Action).

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 16, 2008.

TRD-200803078

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 424-4050

DIVISION 3. DIVISION FOR EARLY CHILDHOOD INTERVENTION SERVICES

40 TAC §§101.8011, 101.8013, 101.8015

No other statute, article, or code is affected by this proposal.

§101.8011.Administrative Hearings Concerning Individual Child Rights.

(a) Purpose. This section is intended to bring the procedures for hearings of the department into compliance with Part C of the Individuals with Disabilities Education Act, and the applicable federal regulations, 34 Code of Federal Regulations §303.1 et seq. This section supplements existing department rules governing hearings and is intended to be applied together except where a conflict exists, in which case this section shall prevail.

(b) Definition. The term "public agency," when used in this section refers to the department and any other political subdivision of the state responsible for providing early childhood services to eligible children and their families.

(c) Applicability. These sections shall apply to hearings under this Division 3 which involve the identification, evaluation, or placement of or the provision of appropriate early intervention services to the child and the child's family.

(d) Request for hearing.

(1) A parent may initiate a hearing on any matter described in subsection (c) of this section and in §101.7007 of this subchapter (relating to Filing a Request for Review).

(2) The request for hearing shall be in writing and filed as provided in §101.7007 of this subchapter with the ECI Assistant Commissioner. The request for hearing shall be deemed filed when actually received by the ECI Assistant Commissioner.

(e) Impartial hearing officer.

(1) Hearings shall be conducted by an impartial hearing officer appointed and selected as provided in §101.7011 of this subchapter (relating to Assignment of Impartial Hearing Officer) and §101.7015 of this subchapter (relating to Substitution of Impartial Hearing Officer). The hearing officer shall be a person who, in addition, to the qualifications listed in §101.7011 of this subchapter:

(A) is knowledgeable about the provision of ECI comprehensive services;

(B) is knowledgeable about the provisions of complaint management, needs of children and families, and the services available to the child and family;

(C) will listen to viewpoints about the complaint, examine information relevant to issue, and seek to reach timely resolution of the complaint; and

(D) will provide records of the proceedings, including written decision.

(2) The person shall not be an employee of the department or any program involved in the provision of services or care to the child or the child's family, or have a personal or professional interest which would conflict with his or her objectivity in the hearing.

(3) A person is not an employee of an agency solely because the person is paid to implement the complaint resolution process.

(f) Hearing rights. In addition to those rights provided parties to a hearing under Division 1 of this subchapter (relating to General Rules), a party to a hearing shall have a right to:

(1) be accompanied and advised by counsel and by individuals with special knowledge or training with respect to early childhood intervention comprehensive services;

(2) prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five days before the hearing;

(3) obtain a written or electronic verbatim record of the hearing; and

(4) obtain written findings of fact, conclusions of law, and decision.

(g) Hearing procedures. In addition to the procedures provided in Division 1 of this subchapter:

(1) The hearing officer shall afford the parties an opportunity for hearing after reasonable notice of not less than 10 days, unless the parties have agreed otherwise.

(2) The hearing officer may issue subpoenas and commissions to take depositions pursuant to the Government Code, Chapter 2001. Subpoenas and commissions to take depositions shall be issued in the name of the Department.

(3) The hearing officer shall issue a final decision no later than 30 days after a request for hearing is filed. A final decision must be in writing and shall include findings of fact and conclusions of law, separately stated. Findings of fact must be based exclusively on the evidence and on matters officially noticed pursuant to the Government Code, Chapter 2001. The final decision shall be transmitted to each party by the hearing officer.

(4) Hearings conducted under these sections will be closed to the public unless the parent requests that the hearing be open.

(h) Child's status during proceedings.

(1) During the pendency of any administrative proceeding regarding a complaint, unless the parties agree otherwise, the child involved in the complaint must continue to receive appropriate comprehensive services previously agreed upon.

(2) If the complaint involves an application for initial admission to a program, the child must receive those comprehensive services not in dispute.

§101.8013.Motion for Reconsideration.

§101.8015.Appeal of Final Decision.

A party aggrieved by a final decision may bring an action for judicial review as provided in §101.7045 of this subchapter (relating to Civil Action).

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 16, 2008.

TRD-200803079

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 424-4050

DIVISION 4. OFFICE FOR DEAF AND HARD OF HEARING SERVICES

40 TAC §§101.8051, 101.8053, 101.8055, 101.8057, 101.8059, 101.8061, 101.8063, 101.8065, 101.8067, 101.8069, 101.8071, 101.8073, 101.8075, 101.8077, 101.8079

No other statute, article, or code is affected by this proposal.

§101.8051.Purpose, Scope and Authority.

(a) This Division 4 establishes rules and procedures for hearings conducted under the provisions of Texas Human Resources Code, Chapter 81, and Texas Government Code, Chapter 57, whenever DARS proposes to suspend or revoke a certificate or place a certificate holder on probation.

(b) The provisions of Texas Human Resources Code, Chapters 81 and 82, Texas Occupations Code, Chapter 53, and Texas Government Code, Chapters 57 and 2001, authorize these rules and procedures.

(c) Except as otherwise noted in this Division, the rules and procedures of this Division shall apply to all certificate holders, including certified court interpreters.

§101.8053.Rules and Procedures Governing Hearings.

Unless otherwise provided in this Division 4, the rules and procedures in Division 1 of this subchapter, shall govern hearings conducted under this Division 4.

§101.8055.Definitions.

(a) The words and terms defined in §101.7005 of this subchapter (relating to Definitions), when used in this Division 4, shall have the same meanings unless the context clearly indicates otherwise. The use of the singular or plural case is not meant to be limiting unless the context clearly indicates otherwise.

(b) Board for Evaluation of Interpreters--refers to the board created under Texas Human Resources Code §81.007.

(c) Certificate holder--means an interpreter issued a certificate by the Department under the provisions of Texas Human Resources Code, Chapter 81, or Texas Government Code, Chapter 57. Unless otherwise noted, certificate holder and interpreter shall have the same meaning.

(d) Consumer--includes any individual, whether deaf, hearing impaired, or hearing, who is part of an interpreted conversation.

(e) Director--means the Director of the Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services.

(f) Office--means the Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services.

§101.8057.Revocation and Suspension of a Certificate.

(a) The Office, based on the recommendation of the Board for Evaluation of Interpreters, may revoke or suspend a certificate or place a certificate holder on probation for a violation of a statute, rule, or policy of the department. If a certificate holder is placed on probation, the Office may require the practitioner:

(1) to report regularly to the Office on matters that are the basis of the probation;

(2) to limit practice to those areas prescribed by the Office; or

(3) to continue or renew professional education until a satisfactory degree of skill has been attained in those areas that are the basis of the probation.

(b) Emergency Suspension. The Office, through its Director, may issue an emergency suspension order to any BEI certificate holder, except for BEI certified court interpreters, if the Director has reasonable cause to believe that the conduct of any certified interpreter creates an imminent danger to public health or safety.

(1) An emergency suspension issued by the Office is effective immediately without a hearing or notice to the certificate holder. Notice to the certificate holder shall be presumed established on the date that a copy of the signed emergency suspension order is sent to the certificate holder at the address shown in the current records of the department.

(2) A copy of the emergency suspension order shall be sent to any and all government entities, institutions, or facilities with which the certificate holder is known to be associated.

(3) If a written request for a hearing is received from the suspended certificate holder within 15 days of the date of the emergency suspension notice, the department shall conduct a hearing not later than the thirtieth day after the date on which a hearing request is received to determine if the emergency suspension is to be continued, modified, or rescinded. Any written request for a hearing received after 15 days from the date of the emergency suspension notice shall be governed by §101.8063 of this subchapter (relating to Filing a Request for Hearing).

(c) Revocation or suspension of certification of a certified court interpreter. The Department may revoke or suspend a court interpreter certification under this subchapter only after a hearing. The Department may reissue a court interpreter certificate to a person whose court interpreter certificate has been revoked if the person applies in writing to the Department and shows good cause to justify reissuance of the certificate. Copies of procedures for submitting applications for reissuance after revocation of a court interpreter certificate may be obtained from the Office.

§101.8059.Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate.

The Office may deny application; suspend or revoke certification; or otherwise discipline, reprimand, or place on probation a certificate holder for any of the following causes:

(1) violations of federal or state laws that are substantiated by credible evidence, whether or not there is a complaint, indictment, or conviction, such violations including, but not limited to, the following:

(A) any felony, including but not limited to homicide, rape, sexual abuse of a child, indecency with a child, injury to a child, aggravated assault, robbery, burglary, theft, forgery, bribery, and perjury;

(B) any misdemeanor involving moral turpitude that involves dishonesty, fraud, deceit, misrepresentation, deliberate violence, or that reflects adversely on the certificate holder's honesty, trustworthiness, or fitness to interpret under the scope of the person's certificate; or

(2) engaging in sexually inappropriate behavior with or comments directed at a consumer, including individuals who are part of the interpreted situation;

(3) using or being under the influence of drugs, whether or not controlled, or intoxicating liquors to an extent that affects the interpreter's professional competence;

(4) impersonating another person who holds an interpreter certification from the office;

(5) allowing another person to use their interpreter certification;

(6) representing oneself or another interpreter as having a level of certification different from the actual level of certification awarded by the office, in excess of the actual level of certification;

(7) using fraud, deception, which includes, but is not limited to cheating, or misrepresentation in an application for certification, during the certification examination or evaluation, or in the certification maintenance or renewal process;

(8) violating or aiding in the violation of the Code of Professional Conduct described in §101.8061(a)(1) of this subchapter (relating to Codes of Professional Conduct and Ethics) or, with respect to certified court interpreters only, of the Code of Ethics and Professional Responsibility of Certified Court Interpreters described in §101.8061(a)(2) of this subchapter;

(9) being grossly incompetent or grossly negligent in performing the duties as an interpreter; or having demonstrated repeated and/or continuous negligence or irresponsibility in the performance of their duties;

(10) being adjudicated mentally incompetent by a court of competent jurisdiction;

(11) intentionally harassing, abusing, or intimidating, either physically or verbally, a consumer, including individuals who are part of the interpreted situation; a board member; evaluator; or any staff of the Department;

(12) intentionally divulging or using inappropriately any aspect of confidential information relating to the certification evaluation including content, topic, vocabulary, identity of individuals involved in the tests, skills, written test questions, and any other testing materials deemed confidential;

(13) failure to meet requirements for certification maintenance;

(14) engaging in the practice of interpreting while certification is suspended;

(15) falsification of re-certification documents by altering original letters, certificates issued through continuing education, or attendance verification; or

(16) violation of a statute, rule, or policy of the Office or Department.

§101.8061.Codes of Professional Conduct and Ethics.

(a) Applicable Codes of Conduct and Ethics.

(1) The Code of Professional Conduct of the National Association of the Deaf (NAD) and the Registry of Interpreters for the Deaf, Inc. (RID), shall govern the professional conduct of interpreters/transliterators certified by the Office.

(2) The Code of Ethics and Professional Responsibility of Certified Court Interpreters of the Office shall govern the professional conduct of court interpreters certified under Texas Government Code, Chapter 57.

(b) Willful violation of either the NAD-RID Code of Professional Conduct or the Code of Ethics and Professional Responsibility of Certified Interpreters is grounds for suspension or revocation of certification under §101.8059 of this subchapter (relating to Grounds for Denying, Revoking, or Suspending an Interpreter's Certificate).

(1) Copies of the NAD-RID Code of Professional Conduct may be obtained from the National Association of the Deaf, from the Registry of Interpreters for the Deaf, Inc., or from the Office.

(2) Copies of the Code of Ethics and Professional Responsibility of Certified Court Interpreters may be obtained from the Office.

§101.8063.Filing a Request for Hearing.

(a) A certificate holder, other than a certified court interpreter, whose certificate the Department proposes to suspend, revoke, or place on probation, may request a hearing. A certified court interpreter's certificate may only be suspended or revoked by the Department after a hearing.

(b) Although no prescribed form is required to file a request, preprinted forms for this purpose shall be maintained by the Office for Deaf and Hard of Hearing Services and available upon request.

(c) The request for hearing shall be filed in writing with the Hearings Coordinator, DARS Legal Services. A request shall be considered filed on the day that it is received by the Hearings Coordinator.

(d) Upon receiving a request for review, the Hearings Coordinator, DARS Legal Services, within five business days, shall notify the certificate holder of the name of the impartial hearing officer appointed to hear the appeal, and the date, time and place of any pre-hearing.

(e) Timeliness of a request for hearing. Except as prescribed in §101.8057(b) of this subchapter, relating to a hearing request on an emergency suspension, unless good cause is shown, a request shall be considered timely if it is received by the Department's Hearings Coordinator no later than 60 days from the date the certificate holder is served according to Government Code, §2001.054(c) with written notice of the Department's proposal to revoke or suspend the certificate holder's certificate or place the certificate holder on probation.

§101.8065.Filings.

(a) All filings shall be sent to the Department, 4800 North Lamar, Suite 300, Austin, Texas 78756 with the notation "Attention: Hearings Coordinator," or delivered to the Department at that address.

(b) A copy of all filings shall be sent by mail or otherwise delivered to all parties.

§101.8067.Discovery and Evidence.

(a) The provisions of Texas Government Code, Chapter 2001, shall govern discovery and the admissibility of evidence.

(b) All discovery requests should be directed to the party from which discovery is being sought.

(d) All parties shall be afforded a reasonable opportunity to file objections and motions to compel with the impartial hearing officer regarding any and all discovery requests.

(e) Copies of discovery requests and documents filed in response thereto shall be filed on all parties, but should not be filed with the impartial hearing officer or the Coordinator of Hearings unless directed to do so by the impartial hearing officer or when in support of objections, motions to compel, motions for protective order, or motions to quash.

§101.8069.Documentary Evidence and Official Notice.

(1) Texas Human Resources Code Chapters 81 and 82;

(2) Texas Occupation Code Chapter 53;

(3) Texas Administrative Code, Title 40, Part 2, Chapter 109, Office for Deaf and Hard of Hearing Services, Division for Rehabilitation Services, Department of Assistive and Rehabilitative Services; and

(4) where applicable, Texas Government Code, Chapter 57.

(d) Official notice also may be taken of:

(1) all facts that judicially cognizable; and

(2) generally recognized facts within the area of the Department's specialized knowledge.

§101.8071.Impartial Hearing Officer Decision.

(a) Within 30 days of the hearing completion date, the impartial hearing officer shall issue a decision and shall provide to the appellant or, if appropriate, the appellant's authorized representative, the Director, and the Department's authorized representative a full written report of the findings of fact, conclusions of law, and any other grounds for the decision.

(d) The impartial hearing officer may prescribe such remedies as are appropriate within the scope of Texas Human Resources Code, Chapters 81 and 82, and Texas Occupations Code, Chapter 53.

§101.8073.Finality of the Hearing Officer's Decision.

The decision of the impartial hearing officer is the final decision of the Department, and, if no timely motion for reconsideration is file, becomes the final decision of the Department.

§101.8075.Implementation of Final Decision.

If a party brings a civil action to challenge a final decision of a hearing officer, the final decision involved shall be implemented pending review by the court.

§101.8077.Motion for Reconsideration.

§101.8079.Appeal of Final Decision.

A party aggrieved by a final decision may bring an action for judicial review as provided in §101.7045 of this subchapter (relating to Civil Action).

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 16, 2008.

TRD-200803080

Sylvia F. Hardman

General Counsel

Department of Assistive and Rehabilitative Services

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 424-4050

PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 811. CHOICES

The Texas Workforce Commission (Commission) proposes the following new sections to Chapter 811, relating to Choices:

Subchapter A. General Provisions, §811.4 and §811.5

The Commission proposes amendments to the following sections of Chapter 811, relating to Choices:

Subchapter A, General Provisions, §811.2 and §811.3

Subchapter B, Choices Services Responsibilities, §§811.11, 811.14, and 811.16

Subchapter C, Choices Services, §§811.21, 811.26, 811.27, 811.29, and 811.34

Subchapter D, Choices Work Activities, §§811.41, 811.43 - 811.46, and 811.48 - 811.51

Subchapter E, Support Services and Other Initiatives, §811.64

The Commission proposes the repeal of the following section of Chapter 811, relating to Choices:

Subchapter D, Choices Work Activities, §811.47

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

PART III. IMPACT STATEMENTS

PART IV. COORDINATION ACTIVITIES

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of this Chapter 811 amendment is to:

--implement the regulatory requirements issued by the United States Department of Health and Human Services (HHS);

--align Chapter 811 with previously released Commission guidance (i.e., Workforce Development (WD) Letters, Technical Assistance Bulletins, policy clarifications);

--implement changes based on the findings in the State Auditor's Office October 2007 audit of the Choices program; and

--incorporate technical changes for clarification and consistency throughout the chapter.

In February 2006, the Deficit Reduction Act (DRA) of 2005 (P.L. 109-171) reauthorized the Temporary Assistance for Needy Families (TANF) program through Federal Fiscal Year 2010. In addition to providing ongoing funding for TANF, DRA also changed several provisions in law related to TANF work participation. DRA directed HHS to issue regulations regarding:

--allowable work activities;

--verification, documentation, and internal control procedures; and

--inclusion of certain child-only cases in the calculation of work participation rates.

On February 5, 2008, HHS issued TANF final regulations (final regulations), which include changes from the June 29, 2006, interim final regulations. The final regulations also provide clarification on a number of elements retained from the interim final regulations.

The final regulations become effective on October 1, 2008. Local Workforce Development Boards (Boards) have been informed of the major changes affecting Choices services, through a Commission meeting, policy concept, and conference call, prior to this proposed rulemaking. While there may be more stringent requirements under this chapter, the Commission's intent is to provide Boards the same flexibility offered under the TANF interim final regulations.

In addition to the changes made to comply with the final regulations, and to align the rules with other current federal regulations, technical changes are made to:

--simplify and clarify rule language;

--consolidate policies, procedures, and memoranda of understanding (MOUs) requirements;

--consolidate documentation, supervision, and verification requirements;

--update terminology and definitions; and

--remove obsolete provisions.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER A. GENERAL PROVISIONS

The Commission proposes the following amendments to Subchapter A:

§811.2. Definitions.

Section 811.2(2) adds the term "nonrecipient parent" to the definition of Choices eligible to incorporate the federal definition of "work eligible individual," which is included as new §811.2(16). Senate Bill (SB) 589, enacted by the 80th Texas Legislature, Regular Session (2007), makes nonrecipient parents eligible to receive Choices services. This legislation was in response to the interim final regulations, which included nonrecipient parents in states' performance calculations for the first time.

Section 811.2(3)(A), the definition of exempt Choices participant, replaces the term "an adult or teen head of household" with the term "Choices eligible" to provide consistency with other definitions in this chapter.

Section 811.2(3)(B), the definition of mandatory Choices participant, replaces the text "An adult or teen head of household, including an extended TANF recipient, conditional applicant, and sanctioned family, as defined in this section" with the term "Choices eligible" to provide consistency with other definitions in this chapter.

New §811.2(9)(A) - (C) defines the term "nonrecipient parent" as adults or minor heads of household not receiving financial assistance, but living with their own children who are receiving financial assistance. The definition of nonrecipient parent is added to align with HHS's definition of "work eligible individual," as defined in new §811.2(16), which includes certain nonrecipient parents. Nonrecipient parents include parents who are not eligible for TANF cash assistance for the following reasons:

(A) disqualification by the Texas Health and Human Services Commission (HHSC). These disqualifications include parents who:

(i) refuse to comply with Medicaid third-party resource requirements;

(ii) do not comply with Social Security number requirements;

(iii) are found guilty of an intentional program violation;

(iv) fail to report the temporary absence of a certified child;

(v) are fugitives fleeing to avoid prosecution of, or confinement for, a felony criminal conviction, or are found by a court to be violating federal or state probation or parole;

(vi) are convicted of a felony drug offense (not deferred adjudication) committed on or after April 1, 2002; or

(vii) refuse to cooperate with the program integrity assessment process;

(B) because they are receiving Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI); or

SB 589 makes nonrecipient parents eligible to receive Choices services. This legislation was in response to the interim final regulations, which included nonrecipient parents in states' performance calculations for the first time.

New §811.2(13) defines the term "secondary school" as educational activities including middle school, high school leading to a high school diploma, or classes leading to the completion of a General Educational Development (GED) credential.

New §811.2(16)(A) - (C) defines the term "work eligible individual" as adults or minor heads of household receiving TANF cash assistance, and nonrecipient parents-with the following exceptions:

(A) Noncitizens who are ineligible to receive cash assistance because of their immigration status;

(B) Parents caring for a disabled family member who lives in the home (provided the need for such care is supported by medical documentation), on a case-by-case basis; and

Certain paragraphs in §811.2 have been renumbered to accommodate additions or deletions.

§811.3. Choices Service Strategy.

Section 811.3(b), requiring local policies for a Choices service strategy, is removed and incorporated in §811.4(a)(1).

Section 811.3(c) has been relettered as new §811.3(b).

Section 811.3(b)(5) removes the text "assistance with completion of secondary school or a General Educational Development (GED) credential" and replaces it with the text "secondary school" as defined in new §811.2(13) for clarity and consistency.

Section 811.3(b)(6) removes the text requiring Boards to develop MOUs with agencies to serve Choices eligibles with disabilities and incorporates it into new §811.4(c)(1).

Section 811.3(b)(9), requiring a local-level MOU in cooperation with HHSC for coordinated case management, is removed and incorporated in §811.4(c)(2).

Section 811.3(b)(10), requiring Boards to establish housing partnerships, is removed and incorporated in §811.4(c)(4).

§811.4. Policies, Memoranda of Understanding, and Procedures.

New §811.4 is added to consolidate all requirements for the development of policies, procedures, and MOUs throughout Chapter 811.

Section 811.4(a)(1) - (3) requires Boards to establish policies regarding the following:

(1) a Choices service strategy, as defined in §811.3, that coordinates various service delivery approaches to:

(A) assist applicants and conditional applicants in gaining employment as an alternative to public assistance;

(B) utilize a work first design as referenced in §811.3(b)(2) to provide Choices participants access to the labor market; and

(C) assist former TANF recipients with job retention and career advancement in order to remain independent of TANF cash assistance;

(2) the amount of wages subsidized for subsidized employment placements; and

(3) the methods and limitations for provision of work-related expenses.

Section 811.4(b)(1) - (2) provides that Boards may establish optional policies that:

(1) require the use of the Eligible Training Provider Certification System (ETPS) and Individual Training Accounts (ITAs) as described in Chapter 841 of this title to provide Choices services for Choices participants paid for with TANF funds; and

(2) make post-employment services available to:

(A) former TANF recipients who are denied TANF cash assistance because of earnings; and

(B) sanctioned families and conditional applicants who obtain employment during their demonstrated cooperation period.

Section 811.4(c)(1) - (4) requires Boards to ensure that the following MOUs and collaborative partnerships are developed:

(1) Local-level MOUs with the appropriate agencies to serve Choices eligibles with disabilities to maximize their potential for success in employment;

(2) A local-level MOU in cooperation with HHSC for coordinated case management that is consistent with the MOU between HHSC and the Commission;

(3) A local-level MOU with the Texas Department of State Health Services for providing mental health and substance abuse services to Choices participants; and

(4) A collaborative partnership with housing authorities and sponsors of local housing programs and services to address the unmet housing needs of recipients.

Section 811.4(d)(1) - (6) requires Boards to ensure that procedures are developed to:

(1) ensure that job development services are available to Choices participants, including:

(A) contacting local employers or industry associations to request that job openings be listed with Texas Workforce Centers, and other entities in the One-Stop Service Delivery Network selected by the Board;

(B) identifying the hiring needs of employers;

(C) assisting the employer in creating new positions for Choices participants based on the job developer's and employer's analysis of the employer's business needs; or

(D) finding opportunities with an employer for a specific Choices participant or a group of Choices participants;

(2) ensure that job placement services are available to Choices participants;

(3) notify applicants and conditional applicants, in conjunction with HHSC, on the availability of regularly scheduled Workforce Orientations for Applicants (WOAs) and alternative WOAs;

(4) notify HHSC of applicants and conditional applicants who have contacted a Texas Workforce Center to request alternative WOAs;

(5) ensure that services are concentrated on Choices eligibles approaching their state or federal time limit, as identified in §811.3(c)(7)(A) and (B); and

(6) determine a family's inability to obtain child care.

Section 811.4(e) requires that Boards electing to establish one or more of the optional policies described in §811.4(b) shall ensure that corresponding procedures are also developed for those policies.

§811.5. Documentation, Verification, and Supervision of Work Activities.

New §811.5 consolidates all requirements for documentation, verification, and supervision of Choices work activities throughout the chapter.

Section 811.5(a) clarifies that all required information, including but not limited to pay stubs, contact names, and time sheets related to the documentation and verification of participation in Choices work activities, as described in §811.5, shall be documented and verified in The Workforce Information System of Texas (TWIST), the Agency's automated information system. Although previously not set forth in rule, this requirement conforms with Commission guidance.

Section 811.5(b) clarifies that all participation in Choices shall be verified and documented and that self-attestation is not allowed. Although previously not set forth in rule, this requirement conforms with Commission guidance.

Section 811.5(c) requires that participation in paid work activities, as described in §§811.42 - 811.44 of Subchapter D, be documented and verified at least monthly in TWIST unless participation is projected, as described in §811.34(3) of Subchapter C. If participation is projected, participation in paid work activities shall be documented and verified in TWIST at least every six months.

Section 811.5(d)(1) - (2) requires that participation in unpaid activities, as described in §§811.41, 811.45, and 811.46 of Subchapter D, be supervised daily and verified and documented at least monthly in TWIST, replacing the previous requirement that documentation be entered biweekly. Although previously not set forth in rule, this requirement conforms with Commission guidance.

Section 811.5(e)(1) - (2) requires that up to one hour of unsupervised homework time for every hour of class time in unpaid activities, as described in §§811.48 - 811.50 of Subchapter D, can be counted toward a Choices participant's work requirement. All homework hours in excess of one hour per every hour of class time shall be directly monitored, supervised, verified, and documented.

Section 811.5(e)(3) requires that study or homework time in unpaid activities, as described in §§811.48 - 811.50, shall be counted only toward a Choices participant's family participation requirement if:

(A) study or homework time is directly correlated to the demands of the course work for out-of-class preparation as described by the educational institution; and

(B) the educational institution's policy requires a certain number of out-of-class preparation hours for the class.

Section 811.5(e)(4) requires that good or satisfactory progress as determined by the educational institution must be verified and documented in TWIST at least monthly for unpaid activities, as described in §§811.48 - 811.50.

Section 811.5(e)(5) requires that all participation in unpaid activities, as described in §§811.48 - 811.50, be supervised daily.

Section 811.5(e)(6) requires that all participation be verified and documented in TWIST at least monthly. Although previously not set forth in rule, this requirement conforms with Commission guidance.

SUBCHAPTER B. CHOICES SERVICES RESPONSIBILITIES

The Commission proposes the following amendments to Subchapter B:

§811.11. Board Responsibilities.

Section 811.11(a)(1), requiring Boards to ensure that procedures are developed, in conjunction with HHSC, to notify applicants and conditional applicants on the availability of regularly scheduled WOAs and alternative WOAs, is removed and incorporated in §811.4(d)(3).

Section 811.11(a)(5), requiring Boards to ensure that procedures are developed to notify HHSC of applicants and conditional applicants who have contacted a Texas Workforce Center to request alternative WOAs, is removed and incorporated in §811.4(d)(4).

Section 811.11(d), requiring Boards to ensure that procedures are developed to ensure that services are concentrated on Choices eligibles approaching their state or federal time limit, is removed and incorporated in §811.4(d)(5).

Certain subsections in §811.11 have been relettered, and certain paragraphs have been renumbered, to accommodate additions or deletions.

§811.14. Noncooperation.

Section 811.14(c) and (d) replace the term "Board" with the term "Agency" with regard to defining timely and reasonable attempts. Previously, Boards were required to make a timely and reasonable attempt-as defined by the Board-to contact Choices participants prior to requesting a sanction for failure to meet Choices work requirements. The rule allowed Boards to establish their own policies, procedures, and time frames for timely and reasonable attempts.

In October 2007, the State Auditor's Office (SAO) released an audit report on the Agency's Choices program. The SAO report highlights concerns surrounding the timeliness of requests to sanction customers who do not comply with Choices work requirements. In 43 percent of the sanction cases tested, SAO found that caseworkers did not request sanctions promptly for these customers. As a result, customers who were no longer eligible continued to receive Choices services.

Agency monitoring staff has also raised concerns about the lack of clearly defined time frames in Boards' timely and reasonable attempt policies. Lack of specific time frames can result in delays in requesting-and thereby imposing-sanctions. This can result in inequitable treatment of Choices participants-some may be sanctioned quickly, while for others the process is lengthy.

An Agency-standardized timely and reasonable attempt policy will ensure that Choices participants across the state receive the same information about participation requirements, the consequences of not participating, good cause, and the right to appeal sanctions. Additionally, a standardized policy will ensure equitable treatment and timelines for all Choices participants who fail to comply with work requirements.

§811.16. Good Cause for Choices Participants.

Section 811.16(c)(4) is deleted; new §811.16(c)(4) provides for a single good cause reason for all Choices participants caring for an ill or disabled family member regardless of whether the family member attends school full time. This change conforms with the final regulations, which now allow all work-eligible individuals caring for an ill or disabled family member to be disregarded from federal work participation rates, regardless of whether the family member attends school full time.

New §811.16(c)(6)(A) removes language referring to §811.47, which is repealed. WD Letter 59-07, issued September 27, 2007, and entitled "Choices: New and Expiring TWIST Activity Codes," removes providing child care services to Choices participants in community service as an allowed activity effective October 1, 2007, because of verification requirements in the interim final regulations, guidance provided by the Administration for Children and Families (ACF) on Texas' Work Verification Plan, and the lack of participation in this activity. The verification required by HHS is not cost-effective based on the number of participants in this activity.

Section 811.16(d) removes the requirement for Boards to promulgate policies and procedures for determining a family's inability to obtain child care and incorporates the requirement in §811.4(d)(6).

Certain paragraphs in §811.16 have been renumbered to accommodate additions or deletions.

SUBCHAPTER C. CHOICES SERVICES

The Commission proposes the following amendments to Subchapter C:

§811.21. General Provisions.

Section 811.21(d), providing Boards the option to require the use of the Eligible Training Provider Certification System (ETPS) and Individual Training Accounts (ITAs), is removed and incorporated in §811.4(b)(1) and (e).

Section 811.21(e), requiring Boards to make job development services available, is removed and incorporated in §811.4(d)(1).

Section 811.21(g), requiring Boards to make job placement services available, is removed and incorporated in §811.4(d)(2).

Certain subsections in §811.21 have been relettered to accommodate additions or deletions.

§811.26. Special Provisions Regarding Community Service.

Section 811.26(a) removes the term "participation" when referring to the required four weeks of Choices service and replaces it with the term "enrollment." This change is made for consistency with guidance on when the community service requirement begins.

Further, §811.26(a) removes the six-week limit on participation in job search and job readiness activities per federal fiscal year and replaces it with an hourly limit per 12-month period for consistency with the requirements set forth in 45 C.F.R. §261.34 and §811.27.

Section 811.26(c) removes the term "Exempt recipients who voluntarily participate in Choices services" and replaces it with the term "Exempt Choices participants." This change is made to provide consistency with the definition of exempt Choices participants in §811.2(3)(A).

§811.27. Special Provisions Regarding Job Search and Job Readiness.

Section 811.27 reflects the new federal limits on participation in job search and job readiness activities from six weeks per federal fiscal year to an hourly limit per 12-month period, as required by 45 C.F.R. §261.34. The final regulations maintain the limit of four consecutive weeks of participation in job search and job readiness activities but convert the six-week limit to hours (120 for single parents with a child under age six and 180 for all other Choices eligibles) and change the period from a federal fiscal year to a rolling 12-month period.

Section 811.27(a) changes the job search limit from six weeks to 120 or 180 hours as described in §811.27(b)(2), and changes the period of measurement for the job search and job readiness limit from a federal fiscal year to a 12-month period. These changes are necessary to comply with the final regulations.

New §811.27(b)(2)(A) reflects the change in the job search limit from six weeks to 120 hours for single parents with a child under age six and the change in the period of measurement for the job search and job readiness limit from a federal fiscal year to a 12-month period.

New §811.27(b)(2)(B) reflects the change in the job search limit from six weeks to 180 hours for all other Choices eligibles and the change in the period of measurement for the job search and job readiness limit from a federal fiscal year to a 12-month period. These changes are necessary to comply with the final regulations.

Section 811.27(b)(3) is modified to provide consistency with changes in §811.27(b)(2), stating that after four consecutive weeks of participation in job search and job readiness activities, Choices participants are not eligible for additional participation in job search and job readiness activities until they have complied with §811.26(a).

Section 811.27(c) clarifies that in order for a partial week of participation in job search and job readiness activities to count as a full week of participation, a Choices participant must participate in job search and job readiness for at least three days. This subsection is also amended to reflect the change in the period of measurement for the partial-week limit from a federal fiscal year to a 12-month period.

§811.29. Special Provisions Regarding the Fair Labor Standards Act.

Section 811.29(b) further clarifies that if a customer cannot participate in FLSA-covered activities for enough hours to satisfy the core activity requirement, Boards shall enroll the customer in additional "non-FLSA-covered" core activities to meet the core-hour requirement. This change is required to be consistent with current Agency guidance.

Section 811.29(b)(1), requiring that Choices participants shall be enrolled in additional core activities, is removed and incorporated in §811.29(b).

Section 811.29(b)(2) is deleted, thereby removing the deeming of hours provision from the Choices rules. The final regulations maintain the deeming provision, which allows states to count any family that participates the maximum hours per month allowed under the minimum-wage requirement of the Fair Labor Standards Act (FLSA) as having satisfied the 20-hour-per-week core activity requirement--even if actual participation falls short of 20 hours per week. However, WD Letter 23-07, issued March 28, 2007, and entitled "Implementation of Amended Choices Rules," instructs Boards not to implement the deeming provision. This guidance was subsequently amended by WD Letter 23-07, Change 1, issued December 27, 2007, and entitled "Implementation of Amended Choices Rules: Update."

The deeming provision was suspended based on guidance from HHS during the process of approving Texas' Work Verification plan. HHS guidance requires Texas to deem hours based on TANF and food stamp benefits received as of the last day of the month, rather than allowing deemed hours to be determined based on benefits received at the beginning of a month. Changes to existing interfaces with HHSC are required because HHSC currently does not provide the Agency with all information needed in order to comply with federal guidance.

The lack of these interface changes results in the following:

--The Agency is unable to automate the calculation of deemed hours of participation, which is problematic because of the stricter documentation and verification requirements from HHS.

--HHSC's quarterly reports to HHS include full TANF and food stamp benefits information for all TANF recipients, however, the Agency does not receive this same complete information. Therefore, the Agency's calculation of hours to be deemed will not match HHS's calculation, which is likely to result in a lower-than-anticipated participation rate for Texas.

--Supplemental TANF and food stamp benefits can be issued at any time. Thus, Boards may count on the deeming provision to fulfill a customer's work requirement-only to discover at the end of the month that the customer has received supplemental benefits and should have participated more hours in core activities due to a reduction in deemed hours.

At present, if a customer cannot participate in FLSA-covered activities for enough hours to satisfy the core activity requirement, Boards must enroll the customer in additional non-FLSA-covered activities to meet the core-hour requirement. The Commission believes that this practice-in place prior to the interim final regulations-remains a workable solution to address concerns about implementing the deeming provision in the current environment.

§811.34. Participation Provisions.

Section 811.34(2)(A)(ii) converts excused absence provisions from days to hours. Maximum excused absences are now 80 hours per 12 months and 16 hours per month. This change conforms with the final regulations at 45 C.F.R. §261.60(b).

Section 811.34(3) adds the requirement that hours used to project participation in unsubsidized employment (other than self-employment), subsidized employment, and on-the-job training must be verified, in addition to being current and documented. This change conforms with the final regulations at 45 C.F.R. §261.60(c).

Section 811.34(3)(A) adds the requirement that hours used to project participation in self-employment must be verified, in addition to being current and documented. This change conforms with the final regulations at 45 C.F.R. §261.60(c).

SUBCHAPTER D. CHOICES WORK ACTIVITIES

The Commission proposes the following amendments to Subchapter D:

§811.41. Job Search and Job Readiness Assistance.

Section 811.41(b)(4), requiring daily supervision of participation in job search and job readiness activities, is removed and incorporated in §811.5(d).

Section 811.41(b)(5), requiring daily documentation of participation, is removed. New §811.5(d) sets forth the requirement to document participation on a monthly basis.

Section 811.41(b)(6), requiring Boards to ensure that job readiness activities that include allowable treatment or therapy activities necessary to assist Choices participants with seeking, obtaining, or retaining employment be certified by qualified medical or mental health professionals, is deleted. The final regulations at 45 CFR §261.2(g) no longer require certification of these activities-only documentation.

Section 811.41(d)(4) removes the requirement for substance abuse treatment, mental health treatment, and rehabilitation activities to be certified because the final regulations no longer require certification-only documentation. Boards are only required to ensure that the need for treatment and therapy activities is documented by a qualified medical, substance abuse, or mental health professional.

Certain paragraphs in §811.41 have been renumbered to accommodate additions or deletions.

§811.43. Subsidized Employment.

Section 811.43(c)(1) removes the requirement for Boards to set a policy establishing the amount of wage subsidies and incorporates this requirement in §811.4(a)(2).

Section 811.43(e) adds language to allow Boards to place Choices participants in subsidized employment placements where the employer is not expected to retain the participant, if successful completion of the placement is expected to result in unsubsidized employment with a different employer.

The final regulations clarify that certain statements in the interim final regulations--i.e., that subsidized employment should be of limited duration, and that employers should be expected to hire participants at the end of such placements--were intended as recommendations, not requirements.

§811.44. On-the-Job Training.

Section 811.44(b) adds language clarifying that on-the-job training may be provided on or off the work site. This change is made for consistency with the final regulations.

Section 811.44(d), requiring Boards to ensure the daily supervision of Choices participants enrolled in on-the-job-training, is deleted. Paid work activities, including on-the-job training, are supervised by the employer and Boards are not required to ensure additional supervision.

New §811.44(d) requires that Boards ensure on-the-job training placements are allotted to employers who expect to retain Choices participants as regular unsubsidized employees once the subsidized placement has ended, unless successful completion of the placement is expected to result in unsubsidized employment with a different employer.

The final regulations clarify that certain statements in the interim final regulations--i.e., that on-the-job training should be of limited duration, and that employers should be expected to hire participants at the end of such placements--were intended as recommendations, not requirements.

Boards have informed the Agency of successful programs that provide Choices participants with experience and skills that then enable them to obtain unsubsidized employment with a different employer. Boards have found these programs advantageous to service delivery strategies and--if not for the restrictions in the interim final regulations--Boards would have continued the programs.

Section 811.44(e), requiring Boards to ensure that on-the-job training is documented in TWIST at least every two weeks, is deleted; new monthly documentation requirements are set forth in new §811.5(c).

Certain subsections in §811.44 have been relettered to accommodate additions or deletions.

§811.45. Work Experience.

Section 811.45(f), requiring Boards to ensure that work experience activities are documented in TWIST at least every two weeks, is deleted, because biweekly documentation of work activities is no longer required by the final regulations; monthly verification and documentation requirements are set forth in new §811.5(d).

§811.46. Community Service.

Section 811.46(f), requiring that Choices participants in community service programs be supervised daily, is removed and incorporated in new §811.5(d).

Section 811.46(g), requiring that community services activities be documented in TWIST at least every two weeks, is deleted because biweekly documentation of work activities is no longer required by the final regulations; monthly verification and documentation requirements are set forth in new §811.5(d).

§811.47. Child Care Services to Choices Participants in Community Service.

Section 811.47, providing child care services to Choices participants in community service as an allowed activity, is repealed. WD Letter 59-07, issued September 27, 2007, and entitled "Choices: New and Expiring TWIST Activity Codes," removes this activity effective October 1, 2007, because of verification requirements in the interim final regulations, guidance provided by ACF on Texas' Work Verification Plan, and the lack of participation in this activity. The verification required by HHS is not cost-effective based on the number of participants in this activity.

§811.48. Vocational Educational Training.

Section 811.48(d) is deleted; new §811.5(e)(1) - (3) adds that up to one hour of unsupervised homework time for every hour of class time can be counted toward a Choices participant's work requirement and any homework hours in excess of one hour per every hour of class time must be directly monitored, supervised, verified, and documented.

Section 811.48(e), requiring verification of good or satisfactory progress as determined by the educational institution, is removed and incorporated in new §811.5(e)(4).

Section 811.48(f), requiring that Choices participants in vocational education be supervised daily, is removed and incorporated in new §811.5(e)(5).

Section 811.48(g), requiring that vocational educational training be documented in TWIST at least every two weeks, is deleted because biweekly documentation of work activities is no longer required by the final regulations; monthly verification and documentation requirements are set forth in new §811.5(e)(6).

§811.49. Job Skills Training.

Section 811.49(f), allowing Boards to count supervised study or homework time toward a Choices participant's family participation requirement under specified circumstances, is deleted; new §811.5(e)(1) - (3) adds that up to one hour of unsupervised homework time for every hours of class time can be counted toward a Choices participant's work requirement and any homework hours in excess of one hour per every hour of class time must be directly monitored, supervised, verified, and documented.

Section 811.49(g), requiring verification of good or satisfactory progress as determined by the educational institution, is deleted and incorporated in new §811.5(e)(4).

Section 811.49(h), requiring that Choices participants in job skills training be supervised daily, is deleted and incorporated in new §811.5(e)(5).

Section 811.49(i), requiring that Boards ensure job skills training is documented in TWIST at least every two weeks, is deleted because biweekly documentation of work activities is no longer required by the final regulations; monthly documentation requirements are set forth in new §811.5(e)(6).

§811.50. Educational Services for Choices Participants Who Have Not Completed Secondary School or Received a General Educational Development Credential.

Section 811.50(a)(1) is removed and incorporated in §811.50(a) to clarify that educational services are not core activities for any Choices participants, including those under age 20.

Section 811.50(a)(2) is deleted and incorporated in §811.50(a) to clarify that educational services are not core activities for any Choices participants, including those under age 20.

This clarification is based on guidance from HHS during the process of approving Texas' Work Verification plan, and does not change the work requirements for Choices participants under age 20.

Section 811.50(b)(1) removes the phrase "leading to a high school diploma or a GED credential" and replaces it with "as defined in §811.2(13)," the definition of secondary school.

Section 811.50(d) is deleted; new §811.5(e)(1) - (3) adds that up to one hour of unsupervised homework time for every hour of class time can be counted toward a Choices participant's work requirement and any homework hours in excess of one hour per every hour of class time must be directly monitored, supervised, verified, and documented.

Section 811.50(e), requiring verification of good or satisfactory progress as determined by the educational institution, is removed and incorporated in new §811.5(e)(4).

Section 811.50(f), requiring that Choices participants in educational services be supervised daily, is removed and incorporated in new §811.5(e)(5).

Section 811.50(g), requiring that Boards ensure educational services are documented in TWIST at least every two weeks, is deleted because biweekly documentation of work activities is no longer required by the final regulations; monthly documentation requirements are set forth in new §811.5(e)(6).

§811.51. Post-Employment Services.

Section 811.51(e), giving Boards the option to provide post-employment services to certain former TANF recipients, sanctioned families, and conditional applicants, is removed and incorporated in new §811.4(b)(2).

Certain subsections in §811.51 have been relettered to accommodate additions or deletions.

SUBCHAPTER E. SUPPORT SERVICES AND OTHER INITIATIVES

The Commission proposes the following amendments to Subchapter E:

§811.64. Work-Related Expenses

Section 811.64(b), requiring Boards to develop policies related to the methods and limitations for provision of work-related expenses, is removed and incorporated in new §811.4(a)(3).

Certain subsections in §811.64 have been relettered to accommodate additions or deletions.

PART III. IMPACT STATEMENTS

Randy Townsend, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and local governments expected as a result of enforcing or administering the rules. Although we estimate that there will be a cost associated with implementing provisions of these rules of approximately $5.1 million over the five-year period (Fiscal Year 2009-2013), there will be no additional costs to the state and to local governments as a result of enforcing or administering the rules. As the Agency provided in its Agency cost estimates communicated to the Legislative Budget Board (LBB) for SB 589 during the Legislature's deliberations of this legislation (prior to its ultimate enactment) during the Regular Session of the 80th Legislature in 2007, the funding for serving "nonrecipient parents" is already included in amounts in the Agency's baseline appropriation. The cost estimate for serving this population of customers has been developed by the Workforce Development Division, based on Health and Human Services Commission data. The cost estimate for serving such "nonrecipient parents" has declined significantly from those earlier Agency cost estimates communicated last year to the LBB, to approximately $502,000 per year and $526,000 per year for associated child care for FY 2009-2013. These estimates, however, conclude that there is not an increase in costs to the state because these amounts have already been appropriated to the Agency (i.e., at least for the FY 2008-2009 biennium) and will continue to be appropriated to the Agency throughout this five-year period.

There are no estimated reductions in costs to the state and to local governments 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 revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to persons required to comply with the rules.

There is no anticipated adverse economic impact on small or microbusinesses as a result of enforcing or administering the rules.

Economic Impact Statement and Regulatory Flexibility Analysis

The Agency has determined that the proposed rules will not have an adverse economic impact on small businesses as these proposed rules place no requirements on small businesses.

Mark Hughes, Director of Labor Market Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Laurence M. Jones, Director, Workforce Development Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to provide activities and support services in a more consistent manner to meet the needs of TANF recipients in order to help them become self-sufficient and independent of public assistance, and to provide employers with a skilled workforce. Additionally, failure to implement these changes as proposed may ultimately result in a financial penalty for the Choices program.

The Agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the Agency's legal authority to adopt.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, the Commission sought the involvement of Texas' 28 Boards. The Commission provided the policy concept regarding these rule amendments to the Boards for consideration and review. The Commission also conducted a conference call with Board executive directors and Board staff on May 2, 2008, to discuss the policy concept. During the rulemaking process, the Commission considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.

Comments on the proposed rules may be submitted to TWC Policy Comments, Workforce Policy and Service Delivery, attn: Workforce Editing, 101 East 15th Street, Room 440T, Austin, Texas 78778; faxed to (512) 475-3577; or e-mailed to TWCPolicyComments@twc.state.tx.us. The Commission must receive comments postmarked no later than 30 days from the date this proposal is published in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §§811.2 - 811.5

The amendments and new rules are proposed under Texas Labor Code §301.0015 and §302.002(d), 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 Agency services and activities.

The proposed amendments and new rules affect Texas Labor Code, Title 4 and Texas Human Resources Code, Chapters 31 and 34.

§811.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise.

(1) (No change.)

(2) Choices eligible--An individual eligible to receive Choices services including an adult or teen head of household who is an applicant, conditional applicant, recipient, nonrecipient parent, former recipient, or sanctioned family as defined in this chapter.

(3) Choices participant--A Choices eligible participating in or outreached for Choices services, including:

(A) Exempt Choices participant--A Choices eligible [ ~~An adult or teen head of household~~] who is not required under Texas Human Resources Code, Chapter 31 or Texas Health and Human Services Commission (HHSC) rules (1 TAC, Chapter 372, Texas Works)[,] to participate in Choices services, but who may voluntarily participate in Choices services.

(B) Mandatory Choices participant--A Choices eligible [ ~~An adult or teen head of household, including an extended TANF recipient, conditional applicant, and sanctioned family, as defined in this section,~~ ] who is required under Texas Human Resources Code, Chapter 31 or HHSC rules (1 TAC, Chapter 372, Texas Works)[ ,] to participate in Choices services.

(4) - (8) (No change.)

(9) Nonrecipient parent--Adults or minor heads of household not receiving TANF cash assistance, but living with their own children who are receiving TANF cash assistance. Nonrecipient parents include parents who are not eligible for TANF cash assistance:

(A) due to a disqualification by the Texas Health and Human Services Commission. These disqualifications include parents who:

(i) refuse to comply with Medicaid third-party resource requirements;

(ii) do not comply with Social Security number requirements;

(iii) are found guilty of an intentional program violation;

(iv) fail to report the temporary absence of a certified child;

(v) are fugitives fleeing to avoid prosecution of, or confinement for, a felony criminal conviction, or are found by a court to be violating federal or state probation or parole;

(vi) are convicted of a felony drug offense (not deferred adjudication) committed on or after April 1, 2002; or

(vii) refuse to cooperate with the program integrity assessment process;

(B) because they are receiving Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI); or

(10) [~~(9)~~] PRWORA--The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105, as amended.

(11) [~~(10)~~] Recipient--An adult or teen head of household who receives TANF cash assistance.

(12) [~~(11)~~] Sanctioned family--An adult or teen head of household who must demonstrate cooperation for one month in order to reinstate TANF cash assistance.

(13) Secondary school--Educational activities including middle school, high school leading to a high school diploma, or classes leading to the completion of a General Educational Development (GED) credential.

(14) [~~(12)~~] TANF cash assistance--The cash grant provided through HHSC to individuals who meet certain residency, income, and resource criteria as provided under federal and state statutes and regulations, including the PRWORA, the TANF block grant statutes, the TANF State Plan, TANF cash assistance provided under Texas Human Resources Code, Chapters 31 and 34, and other related regulations.

(15) [~~(13)~~] Work-based services--Includes those employment programs defined in Texas Human Resources Code §31.0126.

(16) Work eligible individual--Work eligible individuals are adults or minor heads of household receiving TANF cash assistance, and nonrecipient parents--with the following exceptions:

(A) Noncitizens who are ineligible to receive cash assistance because of their immigration status;

(B) Parents caring for a disabled family member who lives in the home (provided the need for such care is supported by medical documentation), on a case-by-case basis; and

(17) [~~(14)~~] Work ready--A Choices eligible is considered work ready if he or she has the skills that are required by employers in the local workforce development area. A Board must ensure immediate access to the labor market to determine whether the Choices eligible has those necessary skills to obtain employment.

(18) [~~(15)~~] Work requirement--For the purposes of 42 U.S.C. §607 and 45 C.F.R. §261.10, a Choices eligible is deemed to be engaged in work by cooperating with:

(A) all requirements set forth in the family employment plan, as described in this chapter; and

(B) all TANF core and non-core activities, as set forth in this chapter.

§811.3.Choices Service Strategy.

(a) A Board shall ensure that its strategic planning process includes an analysis of the local labor market to:

(1) - (2) (No change.)

(3) identify employment opportunities, which include those with a potential for career advancement that may assist a Choices eligible's progression toward [~~towards~~ ] self-sufficiency.

~~[(b) A Board shall set local policies for a Choices service strategy that coordinates various service delivery approaches to:]~~

~~[(1) assist applicants and conditional applicants in gaining employment as an alternative to public assistance;]~~

~~[(2) utilize a work first design as referenced in subsection (c)(2) of this section to provide Choices participants access to the labor market; and]~~

~~[(3) assist former recipients in job retention and career advancement to remain independent of TANF cash assistance.]~~

(b) [~~(c)~~] The Choices service strategy shall include:

(1) Workforce Orientation for Applicants (WOA). As a condition of eligibility, applicants and conditional applicants are required to attend a workforce orientation that includes information on options available to allow them to enter the Texas workforce.

(2) Work First Design.

(A) The work first design:

(i) allows Choices participants to take immediate advantage of the labor market and secure employment, which is critical due to individual time-limited benefits; and

(ii) meets the needs of employers by linking Choices participants with skills that match those job requirements identified by the employer.

(B) Boards shall provide Choices participants access to other services and activities available through the One-Stop Service Delivery Network, which includes the WOA, to assist with employment in the labor market before certification for TANF cash assistance.

(C) Post-employment services shall be provided in order to assist a Choices participant's progress toward self-sufficiency as described in subsection (b)(3) of this section and §811.51.

(D) In order to assist a Choices eligible's progress toward self-sufficiency:

(i) Boards shall provide Choices eligibles who are employed, including mandatory Choices participants coded by HHSC as working at least 30 hours per week, earning at least $700 per month, and receiving the EID, with information on available post-employment services; or

(ii) Boards may provide Choices eligibles with post-employment services as determined by Board policy. The length of time these services may be provided is subject to §811.51.

(E) In order to assist employers, Boards shall coordinate with local employers to address needs related to:

(i) employee post-employment education or training;

(ii) employee child care, transportation or other support services available to obtain and retain employment; and

(iii) employer tax credits.

(F) Boards shall ensure that a family employment plan is based on employer needs, individual skills and abilities, and individual time limits for TANF cash assistance.

(3) Post-Employment Services. A Board shall ensure that post-employment services are designed to assist Choices participants with job retention, career advancement, and reemployment, as defined in §811.51. Post-employment services are a continuum in the Choices service strategy to support a Choices participant's job retention, wage gains, career progression, and progression to self-sufficiency.

(4) Adult Services. A Board shall ensure that services for adults shall include activities individually designed to lead to employment and self-sufficiency as quickly as possible.

(5) Teen Services. A Board shall ensure that services for teen heads of household shall include secondary school, as defined in §811.2(13), [~~assistance with completion of secondary school or a General Educational Development (GED) credential~~ ] and making the transition from school to employment, as described in §811.30 and §811.50.

(6) Choices Eligibles with Disabilities. A Board shall ensure that services for Choices eligibles with disabilities include reasonable accommodations to allow the Choices eligibles to access and participate in services, where applicable by law. [A Board shall ensure that Memoranda of Understanding (MOUs) are established with the appropriate agencies to serve Choices eligibles with disabilities, and that referrals are made, as appropriate, to allow Choices eligibles with disabilities to maximize their potential for success in employment. ]

(7) Target Populations. A Board shall ensure that services are concentrated, as further defined in §811.11(d) and (e), on the needs of the following:

(A) recipients who have six months or less remaining of their state TANF time limit, irrespective of any extension of time due to a hardship exemption;

(B) recipients who have 12 months or less remaining of their 60-month federal TANF time limit, irrespective of any extension of time due to a hardship exemption; and

(8) Local Flexibility. A Board may develop additional service strategies that are consistent with the goal and purpose of this chapter and the One-Stop Service Delivery Network.

[(9) Local-Level MOU. A Board shall ensure the development of a local-level MOU in cooperation with HHSC for coordinated case management that is consistent with the MOU between HHSC and the Commission.]

[(10) Housing Partnerships. A Board shall establish a collaborative partnership with housing authorities and sponsors of local housing programs and services to address the unmet housing needs of recipients.]

§811.4.Policies, Memoranda of Understanding, and Procedures.

(a) A Board shall establish policies regarding the following:

(1) A Choices service strategy, as defined in §811.3, that coordinates various service delivery approaches to:

(A) assist applicants and conditional applicants in gaining employment as an alternative to public assistance;

(B) utilize a work first design as referenced in §811.3(b)(2) to provide Choices participants access to the labor market; and

(C) assist former recipients with job retention and career advancement in order to remain independent of TANF cash assistance;

(2) The amount of wages subsidized for subsidized employment placements; and

(3) The methods and limitations for provision of work-related expenses.

(b) A Board may establish optional policies that:

(1) require the use of the Eligible Training Provider Certification System (ETPS) and Individual Training Account (ITA) systems as described in Chapter 841 of this title to provide for Choices services for Choices participants and paid for with TANF funds; and

(2) make post-employment services available to:

(A) former recipients who are denied TANF cash assistance because of earnings; and

(B) sanctioned families and conditional applicants who obtain employment during their demonstrated cooperation period.

(c) A Board shall ensure that the following Memoranda of Understanding (MOUs) and collaborative partnerships are developed:

(1) Local-level MOUs with the appropriate agencies to serve Choices eligibles with disabilities to maximize their potential for success in employment;

(2) A local-level MOU in cooperation with HHSC for coordinated case management that is consistent with the MOU between HHSC and the Commission;

(3) A local-level MOU with the Texas Department of State Health Services for providing mental health and substance abuse services to Choices participants; and

(4) A collaborative partnership with housing authorities and sponsors of local housing programs and services to address the unmet housing needs of recipients.

(d) A Board shall ensure that procedures are developed:

(1) to ensure that job development services are available to Choices participants. These services include:

(B) identifying the hiring needs of employers;

(C) assisting an employer in creating new positions for Choices participants based on the job developer's and employer's analysis of the employer's business needs; or

(D) finding opportunities with an employer for a specific Choices participant or a group of Choices participants;

(2) to ensure that job placement services are available to Choices participants. Job placement services shall include:

(A) identifying employers' workforce needs;

(B) identifying Choices participants who have sufficient skills and abilities to be successfully linked with employment; and

(3) to notify applicants and conditional applicants-in conjunction with HHSC-on the availability of regularly scheduled Workforce Orientations for Applicants (WOAs) and alternative WOAs;

(4) to notify HHSC of applicants and conditional applicants who contacted a Texas Workforce Center to request alternative WOAs;

(5) to ensure that services are concentrated on Choices eligibles approaching their state or federal time limit, as identified in §811.3(c)(7)(A) and (B). Concentrated services may include targeted outreach, enhanced analysis of circumstances that may limit a Choices eligible's ability to participate, and targeted job development; and

(6) to determine a family's inability to obtain child care.

(e) If a Board elects to establish one or more of the optional policies described in subsection (b) of this section, the Board must ensure that corresponding procedures are developed for those policies.

§811.5.Documentation, Verification, and Supervision of Work Activities.

(a) A Board shall ensure that all required information related to the documentation and verification of participation in Choices work activities, as described in this section, is documented in The Workforce Information System of Texas (TWIST).

(b) A Board shall ensure that all participation in Choices is verified and documented and that self-attestation is not allowed.

(c) For paid work activities, as described in §§811.42, 811.43, and 811.44, Boards shall ensure that all participation is verified and documented in TWIST at least monthly. If participation is projected as described in §811.34(3), current and verified participation must be documented in TWIST at least every six months.

(d) For unpaid activities, as described in §§811.41, 811.45, and 811.46, Boards shall ensure that all participation is:

(1) supervised daily; and

(2) verified and documented in TWIST at least monthly.

(e) For unpaid activities, as described in §§811.48, 811.49, and 811.50, Boards shall ensure that:

(1) no more than one hour of unsupervised study or homework time per each hour of class time is counted toward a Choices participant's family participation requirement;

(2) all study and homework time in excess of one hour per hour of class time is directly monitored, supervised, verified, and documented;

(3) study or homework time is only counted toward a Choices participant's family participation requirement if:

(A) the study or homework time is directly correlated to the demands of the course work for out-of-class preparation as described by the educational institution; and

(B) the educational institution's policy requires a certain number of out-of-class preparation hours for the class;

(4) good or satisfactory progress, as determined by the educational institution, is verified and documented in TWIST at least monthly;

(5) all participation is supervised daily; and

(6) all participation is verified and documented in TWIST at least monthly.

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 11, 2008.

TRD-200803033

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 475-0829

SUBCHAPTER B. CHOICES SERVICES RESPONSIBILITIES

40 TAC §§811.11, 811.14, 811.16

The amendments are proposed under Texas Labor Code §301.0015 and §302.002(d), 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 Agency services and activities.

The proposed amendments affect Texas Labor Code, Title 4 and Texas Human Resources Code, Chapters 31 and 34.

§811.11.Board Responsibilities.

(a) A Board shall ensure that:

[(1) procedures are developed, in conjunction with HHSC, to notify applicants and conditional applicants on the availability of regularly scheduled Workforce Orientations for Applicants (WOAs) and alternative WOAs;]

(1) [~~(2)~~] the WOA is offered frequently enough to allow applicants and conditional applicants to comply with the HHSC requirement that gives applicants and conditional applicants 10 calendar days from the date of their eligibility interview to attend a WOA;

(2) [~~(3)~~] during a regularly scheduled WOA or alternative WOA, applicants and conditional applicants are informed of:

(A) employment services available through the One-Stop Service Delivery Network to assist applicants and conditional applicants in achieving self-sufficiency without the need for TANF cash assistance;

(B) benefits of becoming employed;

(D) individual and parental responsibilities; and

(E) other services and activities, including education and training, available through the One-Stop Service Delivery Network, including services and referrals for services available to Choices eligibles with disabilities;

(3) [~~(4)~~] alternative WOAs are developed that allow applicants and conditional applicants with extraordinary circumstances to receive the information listed in paragraph (2) [~~(3)~~] of this subsection;

~~[(5) procedures are developed to notify HHSC of applicants and conditional applicants who contacted a Texas Workforce Center to request alternative WOAs;]~~

(4) [~~(6)~~] verification that applicants and conditional applicants attend a scheduled or alternative WOA is completed and HHSC is notified in accordance with HHSC rules (1 TAC, Chapter 372, Texas Works); and

(5) [~~(7)~~] applicants and conditional applicants are provided with an appointment to develop a family employment plan.

(b) - (c) (No change.)

[(d) A Board shall develop policies and procedures to ensure that services are concentrated on Choices eligibles approaching their state or federal time limit, as identified in §811.3(c)(7)(A) and (B). Concentrated services may include targeted outreach, enhanced analysis of circumstances that may limit a Choices eligible's ability to participate, and targeted job development.]

(d) [~~(e)~~] A Board shall ensure that all extended TANF recipients are outreached and offered the opportunity to participate in Choices activities.

(e) [~~(f)~~] A Board shall ensure that post-employment services, including job retention and career advancement services, are available to Choices eligibles including mandatory Choices participants coded by HHSC as working at least 30 hours per week, earning at least $700 per month, and receiving EID.

(f) [~~(g)~~] A Board shall ensure that the monitoring of work requirements is ongoing and frequent, as determined by a Board, unless otherwise specified in this chapter, and consists of the following:

(1) ensuring receipt of support services;

(2) tracking and reporting support services;

(3) tracking and reporting actual hours of participation, at least monthly, unless otherwise specified in this chapter;

(4) determining and arranging for any intervention needed to assist the Choices participant in complying with work requirements;

(5) ensuring that the Choices participant is progressing toward achieving the goals and objectives in the family employment plan; and

(6) monitoring all other work requirements.

(g) [~~(h)~~] A Board shall ensure that:

(1) no less than four hours of training regarding family violence is provided to staff who:

(A) provide information to Choices eligibles;

(B) request penalties or grant good cause; or

(2) Choices eligibles who are identified as being victims of family violence are referred to an individual or an agency that specializes in issues involving family violence.

(h) [~~(i)~~] A Board shall ensure that documentation is obtained and maintained regarding all contact with Choices participants, including verification of participation hours, and data is entered into [~~The Workforce Information System of Texas (~~]TWIST[)].

(i) [~~(j)~~] A Board shall ensure that a referral program is developed to provide Choices eligibles facing higher than average barriers to employment, as described in this chapter, with referrals to pre-employment and post-employment services offered by community-based and other organizations.

§811.14.Noncooperation.

(a) - (b) (No change.)

(c) A Board shall ensure that timely and reasonable attempts, as defined by the Agency [~~Board~~], are made to contact a mandatory Choices participant prior to requesting a penalty to:

(1) - (2) (No change.)

(d) A Board shall ensure that timely and reasonable attempts, as defined by the Agency [~~Board~~], are made to contact a sanctioned family and conditional applicants upon discovery of noncooperation during their demonstrated cooperation period to determine if good cause exists.

(e) - (f) (No change.)

§811.16.Good Cause for Choices Participants.

(a) - (b) (No change.)

(1) - (3) (No change.)

[(4) Caring for a disabled family member who does not attend school full time and requires the Choices participant's presence in the home. Boards shall ensure the need for such care is supported by medical documentation;]

(4) [~~(5)~~] Caring for a disabled family member who [~~attends school full time and~~] requires the Choices participant's presence in the home. Boards shall ensure the need for such care is supported by medical documentation;

(5) [~~(6)~~] A demonstration that there is:

(A) no available transportation and the distance prohibits walking; or

(B) no available job within reasonable commuting distance, as defined by the Board;

(6) [~~(7)~~] An inability to obtain needed child care, as defined by the Board and based on the following reasons:

(A) Informal child care by a relative or under other arrangements is unavailable or unsuitable[~~, and based on, where applicable, Board policy regarding child care as specified in §811.47~~ ]. Informal child care may also be determined unsuitable by the parent;

(B) Eligible child care providers are unavailable, as defined in Chapter 809 of this title;

(D) Appropriate child care within a reasonable distance from home or the work site is unavailable;

(7) [~~(8)~~] An absence of other support services necessary for participation;

(8) [~~(9)~~] Receipt of a job referral that results in an offer below the federal minimum wage, except when a lower wage is permissible under federal minimum wage law;

(9) [~~(10)~~] An individual or family crisis or a family circumstance that may preclude participation, including substance abuse, mental health, and disability-related issues, provided the Choices participant engages in problem resolution through appropriate referrals for counseling and support services; or

(10) [~~(11)~~] A Choices participant is a victim of family violence.

(d) A Board shall [~~promulgate policies and procedures for determining a family's inability to obtain child care and shall~~] ensure that mandatory Choices participants in single-parent families caring for children under age six are informed of:

(1) the penalty exception to the family work requirement, including the criteria and applicable definitions for determining whether a mandatory Choices participant has demonstrated an inability to obtain needed child care, as defined in subsection (c)(6)(A) - (D) [~~(c)(7)(A) - (D)~~] of this section.

(2) (No change.)

(e) (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 June 11, 2008.

TRD-200803034

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 475-0829

SUBCHAPTER C. CHOICES SERVICES

40 TAC §§811.21, 811.26, 811.27, 811.29, 811.34

The proposed amendments affect Texas Labor Code, Title 4 and Texas Human Resources Code, Chapters 31 and 34.

§811.21.General Provisions.

(a) - (c) (No change.)

[(d) A Board may, through local policies and procedures, require the use of the Eligible Training Provider Certification System (ETPS) and Individual Training Account (ITA) systems as described in Chapter 841 of this title to provide for Choices services for Choices participants and paid for with TANF funds.]

~~[(e) A Board shall, through local policies and procedures, make available job development services, which include:]~~

[(1) contacting local employers or industry associations to request that job openings be listed with Texas Workforce Centers, and other entities in the One-Stop Service Delivery Network selected by the Board;]

~~[(2) identifying the hiring needs of employers;]~~

~~[(3) assisting the employer in creating new positions for Choices participants based on the job developer's and employer's analysis of the employer's business needs; or]~~

~~[(4) finding opportunities with an employer for a specific Choices participant or a group of Choices participants.]~~

(d) [~~(f)~~] A Board shall ensure that job development services identify, at a minimum, job openings for current mandatory Choices participants.

~~[(g) A Board shall, through local policies and procedures, make available job placement services. Job placement services shall include:]~~

~~[(1) identifying employers' workforce needs;]~~

~~[(2) identifying Choices participants who have sufficient skills and abilities to be successfully linked with employment; and]~~

~~[(3) matching the skills of the Choices participant pool to the hiring needs of local employers.]~~

§811.26.Special Provisions Regarding Community Service.

(a) Choices participants, with the exception of those described in §811.30 and §811.33, who are not in an employment activity, must be placed into community service after four weeks of enrollment [~~participation~~] in Choices [ ~~services~~]. Choices participants who are not in an employment activity after reaching their hourly limit per 12-month period, as set forth in §811.27, [~~six-week limit per federal fiscal year~~] in job search and job readiness activities must be placed into community service. An employment activity is defined as:

(1) - (4) (No change.)

(b) (No change.)

(c) Exempt Choices participants [~~recipients who voluntarily participate in Choices services~~] are not subject to the requirements set forth in subsection (a) of this section.

§811.27.Special Provisions Regarding Job Search and Job Readiness.

(a) Choices participants in unsubsidized employment as defined in §811.42, who lose that employment, may participate in job search activities as defined in §811.41(c) and job readiness activities as defined in §811.41(d) unless they have reached the 120- or 180-hour [~~six-week~~] limit per 12-month period set forth in subsection (b)(2) of this section [~~federal fiscal year~~].

(b) Job search and job readiness activities as defined in §811.41 are limited as follows:

(1) (No change.)

(2) Choices participants may not be enrolled for more than : [~~six weeks of total activity in a federal fiscal year;~~]

(A) 120 hours per 12-month period for single parents with a child under age six; and

(B) 180 hours per 12-month period for all other Choices eligibles; and

(3) After four consecutive weeks of participation in job search and job readiness activities, Choices participants are not eligible for additional participation in job search and job readiness activities until they have complied with §811.26(a) [ ~~in order for Choices participants to qualify for their remaining two weeks of job search and job readiness, they must first comply with §811.26(a)~~ ], which requires that Choices participants be engaged in an employment activity or in community service. [~~; and~~]

(c) A Board may count a partial week (i.e., three or four days) of participation in job search and job readiness activities as a full week of participation only once for any Choices participant in a 12-month period [~~only once per federal fiscal year may a partial week count as a full week of participation, per Choices participant~~].

§811.29.Special Provisions Regarding the Fair Labor Standards Act.

(a) (No change.)

(b) The number of hours that a Choices participant is required to participate in community service or another unpaid work activity shall be determined in compliance with FSLA as described in subsection (a) of this section. If a Choices participant's hours of community service or other unpaid work activity are not sufficient to meet the core work activity requirement as set forth in §811.25(b) - (d) , the Choices participant shall be enrolled in additional non-FLSA-covered core activities. [:]

~~[(1) the Choices participant shall be enrolled in additional core activities; or]~~

~~[(2) Boards shall deem the remaining core hours as having met the core work activity requirement.]~~

§811.34.Participation Provisions.

A Board shall count only actual hours of participation in TANF core and non-core activities as allowable work participation hours with the following exceptions, unless otherwise specified in this chapter:

(1) (No change.)

(2) For unpaid work activities set forth in §811.41 and §§811.45 - 811.50, Boards may count short-term excused absences as actual participation if they meet the following conditions:

(A) A short-term excused absence:

(i) (No change.)

(ii) totals a maximum of 80 [10] additional hours [~~days~~] within a 12-month period and does not exceed 16 hours of [~~two~~] excused absences per month.

(B) (No change.)

(3) A Board may project participation hours in unsubsidized employment (except self-employment), subsidized employment, and on-the-job training, up to six months at a time, using an average of four weeks of current, verified, and documented actual hours. For self-employment, a Board:

(A) may project participation hours in self-employment, up to six months at a time, using an average of three months of current, verified, and documented actual hours.

(B) (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 June 11, 2008.

TRD-200803035

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 475-0829

SUBCHAPTER D. CHOICES WORK ACTIVITIES

40 TAC §§811.41, 811.43 - 811.46, 811.48 - 811.51

The proposed amendments affect Texas Labor Code, Title 4 and Texas Human Resources Code, Chapters 31 and 34.

§811.41.Job Search and Job Readiness Assistance.

(a) (No change.)

(b) A Board shall ensure that job search and job readiness activities:

(1) - (3) (No change.)

~~[(4) are supervised daily.]~~

~~[(5) are documented daily in TWIST.]~~

[(6) are allowable treatment or therapy activities that include substance abuse treatment, mental health treatment, or rehabilitation activities determined to be necessary to assist Choices participants with seeking, obtaining, or retaining employment. Boards shall ensure treatment and therapy activities are certified by a qualified medical or mental health professional.]

(d) Job readiness activities are designed to assist Choices participants with addressing issues that will aid them in seeking, obtaining, and retaining employment, including:

(1) - (3) (No change.)

(4) substance abuse treatment, mental health treatment, and rehabilitation activities, if the need for treatment and therapy activities is documented by a qualified medical, substance abuse, or mental health professional;

~~[(5) mental health treatment;]~~

~~[(6) rehabilitation activities;]~~

(5) [~~(7)~~] job counseling;

(6) [~~(8)~~] interviewing skills and practice interviews; and

(7) [~~(9)~~] assistance with applications and resumes.

(e) (No change.)

§811.43.Subsidized Employment.

(a) - (b) (No change.)

(1) Wages shall be at least federal or state [~~State~~ ] minimum wage, whichever is higher. [~~Boards must set a policy to establish the amount of the wage that is subsidized.~~]

(2) (No change.)

(d) (No change.)

(e) Boards shall ensure subsidized employment placements are allotted to employers who expect to retain Choices participants as regular unsubsidized employees once the subsidized placement has ended , unless successful completion of the placement is expected to result in unsubsidized employment with a different employer.

§811.44.On-the-Job Training.

(a) (No change.)

(b) A Board shall ensure that a determination is made on a case-by-case basis whether to authorize, arrange, or refer a Choices participant for subsidized, time-limited training activities, to assist the Choices participant with obtaining knowledge and skills that are essential to the workplace while in a job setting. On-the-job training is training by an employer that is provided to a Choices participant on or off the work site while engaged in productive work in a job that:

(1) - (4) (No change.)

(d) Boards shall ensure on-the-job training placements are allotted to employers who expect to retain Choices participants as regular unsubsidized employees once the on-the-job training placement has ended, unless successful completion of the placement is expected to result in unsubsidized employment with a different employer.

~~[(d) A Board shall ensure Choices participants enrolled in on-the-job training are supervised daily.]~~

~~[(e) A Board shall ensure on-the-job training is documented in TWIST at least every two weeks.]~~

§811.45.Work Experience.

(a) - (e) (No change.)

~~[(f) A Board shall ensure work experience activities are documented in TWIST at least every two weeks.]~~

§811.46.Community Service.

(a) - (e) (No change.)

~~[(f) A Board shall ensure Choices participants in community service programs are supervised daily.]~~

~~[(g) A Board shall ensure community service activities are documented in TWIST at least every two weeks.]~~

§811.48.Vocational Educational Training.

(a) - (c) (No change.)

~~[(d) Boards may count supervised study or homework time toward a Choices participant's family participation requirement if:]~~

~~[(1) study or homework time is directly correlated to the demands of the course work for out-of-class preparation as described by the educational institution;]~~

~~[(2) the educational institution's policy requires a certain number of out-of-class preparation hours for the class; and]~~

~~[(3) study or homework time is directly monitored, supervised, and documented.]~~

~~[(e) A Board shall verify whether the Choices participant is making good or satisfactory progress as determined by the educational institution.]~~

~~[(f) A Board shall ensure Choices participants enrolled in vocational educational training are supervised daily.]~~

~~[(g) A Board shall ensure vocational educational training is documented in TWIST at least every two weeks.]~~

§811.49.Job Skills Training.

(a) - (e) (No change.)

~~>[(f) Boards may count supervised study or homework time toward a Choices participant's family participation requirement if:]~~

~~[(1) study or homework time is directly correlated to the demands of the course work for out-of-class preparation as described by the educational institution;]~~

~~[(2) the educational institution's policy requires a certain number of out-of-class preparation hours; and]~~

~~[(3) study or homework time is directly monitored, supervised, and documented.]~~

~~[(g) A Board shall verify whether the Choices participant is making good or satisfactory progress as determined by the job skills training provider.]~~

~~[(h) A Board shall ensure Choices participants enrolled in job skills training are supervised daily.]~~

~~[(i) A Board shall ensure job skills training is documented in TWIST at least every two weeks.]~~

§811.50.Educational Services for Choices Participants Who Have Not Completed Secondary School or Received a General Educational Development Credential.

(a) Educational services, which are non-core activities as defined in §811.25(a)(2), are only available for Choices participants who have not completed secondary school or who have not received a GED credential. [~~as follows:~~]

~~[(1) Educational services for Choices participants age 20 or older are non-core activities as defined in §811.25(a)(2).]~~

~~[(2) Educational services for Choices participants who are teen heads of household age 19 and younger are core activities as defined in §811.30.]~~

(b) A Board shall ensure that a determination is made, on a case-by-case basis, whether to authorize, arrange, or refer Choices participants who are age 20 and older for the following educational or other training services:

(1) secondary school , as defined in §811.2(13) [ ~~leading to a high school diploma or a GED credential~~], when required as a prerequisite for employment;

(2) - (3) (No change.)

~~[(d) Boards may count supervised study or homework time toward a Choices participant's family participation requirement if:]~~

~~[(1) study or homework time is directly correlated to the demands of the course work for out-of-class preparation as described by the educational institution;]~~

~~[(2) the educational institution's policy requires a certain number of out-of-class preparation hours; and]~~

~~[(3) study or homework time is directly monitored, supervised, and documented.]~~

~~[(e) A Board shall verify whether the Choices participant is making good or satisfactory progress as determined by the educational institution.]~~

~~[(f) A Board shall ensure Choices participants enrolled in educational services are supervised daily.]~~

~~[(g) A Board shall ensure educational services are documented in TWIST at least every two weeks.]~~

§811.51.Post-Employment Services.

(a) A Board shall ensure that post-employment services, which include job retention, career advancement, and reemployment services, are offered to Choices participants who are employed, and to applicants, conditional applicants, and former recipients who have obtained employment but require additional assistance in retaining employment and achieving self-sufficiency.

(b) - (d) (No change.)

~~[(e) A Board may, through local policies and procedures, make post-employment services available to:]~~

~~[(1) former recipients who are denied TANF cash assistance because of earnings; and]~~

~~[(2) sanctioned families and conditional applicants who obtain employment during their demonstrated cooperation period.]~~

(e) [~~(f)~~] The post-employment services may include the following:

(1) assistance and support for the transition into employment through direct services or referrals to resources available in the workforce area;

(2) child care, if needed, as specified in rules at Chapter 809 of this title;

(3) work-related expenses, including those identified in §811.64;

(4) transportation, if needed;

(5) job search, job placement, and job development services to help a former recipient who loses a job to obtain employment;

(6) referrals to available education or training resources to increase an employed Choices eligible's skills or to help the individual qualify for advancement and long-term employment goals;

(7) additional career planning and counseling; or

(8) referral to support services available in the community.

(f) [~~(g)~~] The maximum length of time a former recipient, conditional applicant, and sanctioned family may receive services under this section is dependent upon:

(1) family circumstances;

(2) the risk of returning to public assistance. A person is considered at risk of returning to TANF cash assistance if he or she is a food stamp recipient, or receives Commission-funded child care;

(3) the ongoing need for these services; and

(4) the availability of funds for these services.

(g) [~~(h)~~] Post-employment service providers may include employers, community colleges, technical colleges, career schools and colleges, faith-based and community-based organizations.

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 11, 2008.

TRD-200803036

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 475-0829

40 TAC §811.47

(Editor's note: The text of the following section proposed for repeal will not be published. The section 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 repeal is proposed under Texas Labor Code §301.0015 and §302.002(d), 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 Agency services and activities.

The proposed repeal affects Texas Labor Code, Title 4 and Texas Human Resources Code, Chapters 31 and 34.

§811.47.Child Care Services to Choices Participants in Community Service.

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 11, 2008.

TRD-200803037

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 475-0829

SUBCHAPTER E. SUPPORT SERVICES AND OTHER INITIATIVES

40 TAC §811.64

The proposed amendments affect Texas Labor Code, Title 4 and Texas Human Resources Code, Chapters 31 and 34.

§811.64.Work-Related Expenses.

(a) (No change.)

~~[(b) A Board shall ensure that written policies are developed related to the methods and limitations for provision of work-related expenses.]~~

(b) [~~(c)~~] Work-related expenses may include: tools, uniforms, equipment, transportation, car repairs, housing or moving expenses, and the cost of vocationally required examinations or certificates.

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 11, 2008.

TRD-200803038

Reagan Miller

Deputy Division Director, Workforce Policy and Service Delivery

Texas Workforce Commission

Earliest possible date of adoption: July 27, 2008

For further information, please call: (512) 475-0829