Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 22. EXAMINING BOARDS Part XXIV. Texas Board of Veterinary Medical Examiners Chapter 573. Rules of Professional Conduct Other Provisions 22 TAC sec.573.64 The Texas Board of Veterinary Medical Examiners adopts on an emergency basis new sec.573.64, concerning Continuing Education Requirements. The new section clarifies that Continuing Education hours may be used for only one renewal period. The section is adopted on an emergency basis to comply with the amended Veterinary Licensing Act, Article 8890, sec.13(g), and will be proposed for public comment at a later date. The new section is adopted on an emergency basis under the Veterinary Licensing Act, Article 8890, sec.13(g), which provides the Texas Board of Veterinary Medical Examiners with the authority to establish a minimum number of hours of continuing education required to renew a license under this Act. sec.573.64. Continuing Education Requirements. (a) Requirements. (1) Effective for the 1995 renewal cycle, 15 attendance hours of acceptable continuing education will be required annually for renewal of all types of Texas licenses. Licensees who successfully complete the Texas State Board Examination will be allowed to substitute the examination for the continuing education requirements of that particular year. (2) Required continuing education hours must be obtained during the 12-month period immediately preceding the submission for license renewal. Continuing education hours may be used for only one renewal period. (3) Hardship extensions may be granted by appeal to the Executive Director of the Texas Board of Veterinary Medical Examiners. Should such extension be granted, 30 hours of continuing education shall be obtained in the two-year period of time that includes the year of insufficiency and the year of extension. Documentation of the required continuing education received will be required in these cases, and must be filed with the Board by March 1st of the second year of the hardship period. (b) Proof of Continuing Education. The licensee shall be required to sign a statement on the license renewal form attesting to the fact that the required continuing education hours have been obtained. It shall be the responsibility of the licensee to maintain records which support the sworn statements. Such records may include continuing education certificate, attendance records signed by the presenter, and receipts for meeting registration fees. These documents must be maintained for the last three complete renewal cycles and will be provided for inspection to Texas Board of Veterinary Medical Examiners investigators upon request. (c) Acceptable Continuing Education. Acceptable continuing education hours will be considered by the Board to be hours earned by participation in meetings sponsored by the American Veterinary Medical Association, AVMA's affiliated state veterinary medical associations and/or their continuing education organizations, AVMA recognized specialty groups, regional veterinary medical associations, local veterinary medical associations, and veterinary medical colleges. Other offerings of continuing education hours may be approved by the Board Secretary and Executive Director. (d) Distribution of Continuing Education Hours. Not more than five hours of required continuing education may be derived from correspondence courses, nor will more than five hours of practice management be acceptable. Continuing Education obtained as part of a disciplinary action is acceptable credit towards the total of 15 hours required annually. Issued in Austin, Texas, on October 25, 1993. TRD-9331121 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 16, 1993 Expiration date: March 17, 1994 For further information, please call: (512) 447-1183 22 TAC sec.573.65 The Texas Board of Veterinary Medical Examiners adopts on an emergency basis new sec.573.65, concerning Definitions. The new section removes the definition for Agricultural Operation and substitutes "mammalians" for bovine, caprine, ovine, swine, and rabbits, under the definition of Food Production Animals. Designated Caretaker is amended and limited to food production and equine animals. The section is adopted on an emergency basis to comply with various sections of the amended Veterinary Licensing Act that use terms which have not previously been defined by the Board, and will be proposed for public comment at a later date. The new section is adopted on an emergency basis under the Veterinary Licensing Act, Article 8890, sec.7(a), which provides the Texas Board of Veterinary Medical Examiners with the authority to make, alter, or amend such rules and regulations as may be necessary to carry into effect the provisions of this Act. sec.573.65. Definitions. (a) Accepted Livestock Management Practices (Article 8890, sec.3(a)(2)). Accepted livestock management practices are defined as those involving animals raised or produced primarily for food, fiber, or other products for human consumption. Those practices consist of branding, tattooing, or identifying in any manner; tail-docking of lambs (excludes cosmetic tail-docking that is performed for appearance purposes only); earmarking; routine dehorning (excludes "cosmetic dehorning" that reshapes or alters the poll area for appearance purposes); castration; non-surgical assistance of the birth process; implantation with approved implant products; administration of vaccines and biologicals (unless restricted to administration by a veterinarian); artificial insemination; application of ear tags (excluding official USDA tags) ; and application or administration of parasiticides (unless otherwise restricted by other agencies). Accepted equine management practices include tattooing or branding; artificial insemination; shoeing and trimming hooves; aiding in non- surgical birth process; administration of vaccines, biologicals, and parasiticides (excluding deworming by use of stomach tubing). (b) Designated Caretaker (Article 8890, sec.3(a)(1)). An individual to whom the owner of a food production animal has given specific authority to care for such food production animal, and who has not been employed, by using the pretext of being a designated caretaker, to circumvent the Veterinary Licensing Act by engaging in any aspect of veterinary medicine or alternative therapies. It shall be presumed that a designated caretaker who treats a food production animal for a condition that the animal was known or suspected of having prior to the individual being named a designated caretaker is attempting to circumvent the Veterinary Licensing Act unless the designated caretaker is following the instruction of a veterinarian. This presumption is a rebuttable presumption. (c) Consultation (Article 8890, sec.3(e). The act of rendering professional advice about a specific case. Consultations are limited to diagnosis and prognosis, and do not include treatment or surgery. (d) Food Production Animals (Article 8890, sec.3(a)(4)). Any mammalians, poultry, fowl, fish, or other animals that are raised primarily for human food consumption. (e) Biologic (Article 8890 sec.2(A)). Any serum, vaccine, antitoxin, or antigen used in the prevention or treatment of disease. (f) Pregnancy Testing (Article 8890, sec.2(D)(11)). Pregnancy testing is the diagnosis of the physical condition of pregnancy by any method other than the gross visual observation of the animal. Issued in Austin, Texas, on October 25, 1993. TRD-9331122 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 16, 1993 Expiration date: March 17, 1994 For further information, please call: (512) 447-1183 22 TAC sec.573.66 The Texas Board of Veterinary Medical Examiners adopts on an emergency basis new sec.573.66, concerning monitoring compliance. The new section is adopted on an emergency basis to comply with the Veterinary Licensing Act, Article 8890, sec.18G, as amended during the 73rd Legislature Session, and will be proposed for public comment at a later date. The new section is adopted on an emergency basis under the Veterinary Licensing Act, Article 8890, sec.18G, which provides the Texas Board of Veterinary Medical Examiners with the authority to develop a system for monitoring licensees' compliance with the requirements of this Act, and to include procedures for monitoring a licensee who is ordered by the Board to perform certain acts. sec.573.66. Monitoring Licensees' Compliance with Article 8890. (a) The Board shall conduct a compliance monitoring program in which veterinary practices are inspected on an unannounced basis by Board investigators to ensure that licensees are complying with the requirements of this Act. Those items to be inspected include, but are not limited to, display of licenses, compliance with required consumer information in Article 8890, sec.18A(b), continuing education requirements, sanitation, patient record completion, drug security, drug accountability, and compliance with other state and federal drug laws. (b) Inspection reports will be completed by investigators in duplicate. Copy one will be processed and filed in the licensee's personal file when all deficiencies have been corrected by the licensee. Copy two will be left with the licensee. (c) Licensees will normally be given 45 days to correct deficiencies. Licensees who are delinquent will be contacted by certified mail, requesting them to answer within 15 days of receipt of letter. If no response is received within that time period, the status of "inspection" will be changed to "investigation" and the formal investigative procedure will be followed. (d) After an initial inspection, investigators may close a compliance inspection discrepancy to "voluntary compliance" within the spirit and intent of the program, except when a violation is identified that involves flagrant disregard of the law, including allowing illegal practice; use of prescription drugs, failure to account for drugs dispensed or administered; and drug diversion and/or abuse. In these instances the compliance inspection shall be terminated and an investigation will be opened and all such matters must be referred to the Chief Investigator for review as a complaint. (e) When a licensee is inspected sometime after an initial inspection and the licensee is found to have failed to correct those deficiencies noted in the prior inspection, the investigator will advise the licensee that he has continued to violate the Act and/or Rules of Professional Conduct and that those violations will be reported to the Secretary of the Board for whatever disciplinary action he/she deems appropriate. (f) Licensees that are ordered by the Board to perform certain acts may be inspected on an unannounced basis to verify that the licensees perform the required acts. If the licensee is found to have refused or failed to comply with the Board Order, the investigator will advise him that a report will be prepared documenting the failure to comply and that the report will be submitted to the Secretary of the Board for whatever disciplinary action he/she deems appropriate. Issued in Austin, Texas, on October 25, 1993. TRD-9331124 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 16, 1993 Expiration date: March 17, 1994 For further information, please call: (512) 447-1183 22 TAC sec.573.67 The Texas Board of Veterinary Medical Examiners adopts on an emergency basis new sec.573.67, concerning temporary suspension of a licensee. The new section inserts the word "Executive" in subsection (a)(1). The new section is adopted on an emergency basis to comply with the Texas Veterinary Licensing Act, Article 8890, sec.14C(d), as amended during the 73rd session of the Legislature. The new section is adopted on an emergency basis under the Veterinary Licensing Act, Article 8890, sec.14C(d), which provides the Texas Board of Veterinary Medical Examiners with the authority to adopt procedures for the temporary suspension of a license under this section. sec.573.67. Temporary Suspension of a Licensee. (a) During the first Board meeting over which he presides, the President of the Board shall appoint himself and two other Board members to an executive committee that may temporarily suspend the license of a licensee. The suspension may be made without notice or hearing, provided the following conditions are met: (1) the Executive Committee determines that the continued practice by the licensee constitutes a continuing or imminent threat to the public welfare; and (2) a hearing on whether disciplinary proceedings should be initiated against the licensee is scheduled not later than 14 days after the date of suspension. (b) A second hearing shall be held not later than the 60th day after the date of suspension. If the second hearing is not held within the 60 day period, the suspended license is automatically reinstated. Issued in Austin, Texas, on October 25, 1993. TRD-9331125 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: November 16, 1993 Expiration date: March 17, 1993 For further information, please call: (512) 447-1183 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 75. Investigations Criminal Conviction Checks of Employees in Certain Facilities Serving the Elderly or Disabled 40 TAC sec.75.1001, sec.75.1002 The Texas Department of Human Services (DHS) adopts on an emergency basis the repeal of sec.75.1001 and sec.75.1002, concerning the basis and facilities requirements for criminal conviction checks of employees in certain facilities serving the elderly or persons with disabilities, in its Investigations rule chapter. The purpose for the repeals is to enable DHS to adopt, also on an emergency basis in this issue of the Texas Register, new Chapter 76, Criminal History Check of Employees in Facilities for Care of the Aged and Persons with Disabilities. DHS also is proposing the repeals and new rules in this issue of the Texas Register. DHS adopts the repeals on an emergency basis to comply with the Health and Safety Code, Title 4, Chapter 250, which requires that persons convicted of certain crimes may not be employed in most facilities and agencies providing care to the aged and persons with disabilities. Effective September 1, 1993, DHS assumed responsibility for conducting background checks on persons who would be employed in activities requiring direct contact with consumers of the facility. The repeals are adopted on an emergency basis under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs, and the Health and Safety Code, Title 4, Chapter 250, which requires the department to perform criminal history checks on persons employed by certain types of facilities. The repeals implement the Health and Safety Code, Title 4, Chapter 250. sec.75.1001. Facilities Requirements. sec.75.1002. Facilities Requirements. Issued in Austin, Texas, on November 3, 1993. TRD-9331437 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: November 3, 1993 Expiration date: March 4, 1994 For further information, please call: (512) 450-3765 Chapter 76. Criminal History Check of Employees in Facilities for Care of the Aged and Persons with Disabilities Policy and Procedures 40 TAC sec.sec.76.101-76.108 The Texas Department of Human Services (DHS) adopts on an emergency basis new sec.sec.76.101-76.108, concerning criminal history check of employees in facilities for care of the aged and persons with disabilities. The sections are adopted under new Chapter 76. Also in this issue of the Texas Register, DHS is adopting on an emergency basis and simultaneously proposing the repeal of sec.75.1001 and sec.75.1002 and new sec. s76.101-76.108. The purpose for the new sections is to comply with the Health and Safety Code, Title 4, Chapter 250, which bars persons from employment in most facilities and agencies providing care to the aged and persons with disabilities if those persons have been convicted of certain crimes. Effective September 1, 1993, DHS assumed responsibility for conducting background checks on persons who would be employed in activities requiring direct contact with consumers of the facility. The new sections are adopted on an emergency basis under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs, and the Health and Safety Code, Title 4, Chapter 250, which requires the department to perform criminal history checks on persons employed by certain types of facilities. The new sections implement the Health and Safety Code, Title 4, Chapter 250. sec.76.101. Definitions.
    The following words and terms when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Board-The Board of the Texas Department of Human Services. Department-The Texas Department of Human Services (DHS). Direct Contact with a Consumer-Any contact with a resident or client or a family member or visitor of a resident or client in a facility covered by this chapter. Emergency requiring immediate employment-The urgent need to hire an individual as a result of a survey deficiency on staffing ratios and/or the potential of the facility to fall below their desired staff ratio, thus putting the client's health and safety at risk. A person to be employed under these circumstances must furnish the facility with an affidavit stating that they have not been convicted of a criminal offense described in the Health and Safety Code, sec.250.005. Facilities-The following facilities and applicants, included in the requirement of criminal history checks: (A) nursing homes, custodial care homes, or other institutions licensed under the Health and Safety Code, Chapter 242; (B) personal care facilities licensed under the Health and Safety Code, Chapter 247; (C) adult day care facilities or adult day health care facilities licensed under the Human Resources Code, Chapter 103; (D) facilities for persons with mental retardation licensed or certified by the Texas Department of Health or DHS; (E) intermediate care facilities for persons with mental retardation certified for participation in the Medicaid program under the Social Security Act, Title XIX; (F) adult foster care providers contracting with DHS. sec.76.102. Pre-employment History Check. (a) Employees in facilities for the care of the aged and disabled who come into direct contact with consumers must have a pre-employment criminal history check performed by the Texas Department of Human Services. An employee who has a criminal conviction which bars employment or an employee who fails to obtain a clearance of a conviction which potentially bars employment may not be employed in a facility in a capacity which involves direct contact with a consumer in the facility. (b) Applicants to provide adult foster care are subject to criminal history checks before enrollment in the adult foster care program. sec.76.103. Application for Criminal History Check. The facility must apply for a criminal history check for any applicant for employment. If the applicant is provided temporary employment under the emergency employment provision the application must be filed within 72 hours of the time of employment. The application must be filed on forms provided by the Texas Department of Human Services. sec.76.104. Presumption of Employability. If no response is received by the facility requesting a criminal history check within 60 days of the request date, the facility may assume the check to have revealed no conviction which would bar or potentially bar employment. sec.76.105. Administrative Review.
      An applicant may request an administrative review of a conviction which would potentially bar employment and/or enrollment as an adult foster care provider. The request must be in writing and be submitted by the 20th day of receipt of the notification. The notice must advise the applicant of the type of information which a review panel considers in determining whether the applicant is unlikely to be a threat to consumers or property of the consumers in a facility and/or adult foster home. sec.76.106. Standards for Review. (a) The applicant may submit and the panel must consider the following: (1) documentation which demonstrates the misdemeanor or felony classification of the offense at the time of the offense; (2) the age of the applicant at the time the offense was committed; (3) the length of time since the offense was committed; (4) evidence of rehabilitation, including employment history in a facility; and (5) mitigating circumstances when the offense was committed. (b) The review panel must also consider other documentation which bears on the question of whether the person is likely to be a threat to the consumers or property of the consumers in a facility. sec.76.107. Personal Appearance. (a) If the review panel determines that the documentation required in sec.76.106 of this title (relating to Standards for Review) is insufficient to demonstrate that the applicant would be unlikely to be a threat to the consumers or property of the consumers in a facility, the applicant must be provided the opportunity to appear before the panel in person to offer additional information. This notice of opportunity must be: (1) included in the findings notice by the review panel; and (2) requested within 10 days of the date of the notice. (b) If the applicant fails to request the opportunity for a personal appearance in a timely manner, the finding of the panel becomes final. sec.76.108. Correction of Mistakes of Fact or Identity in Criminal History Record. (a) The applicant for employment or enrollment is responsible for correcting errors of fact or identity in the criminal history record reported by the Texas Department of Public Safety (DPS). The applicant should contact DPS directly and provide whatever positive identification information may be required for a verification of the record. (b) The applicant should request an administrative review of the finding of a conviction which constitutes, or may constitute, a bar to employment at the same time that a correction of the record is sought. (c) The request for review should clearly indicate that the applicant is seeking a correction in the records as part of the review process. The corrected information should be presented to the administrative review panel as part of the documentation for review. Issued in Austin, Texas, on November 3, 1993. TRD-9331436 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: November 3, 1993 Expiration date: March 4, 1994 For further information, please call: (512) 450-3765 Part II. Texas Rehabilitation Commission Chapter 104. Informal and Formal Appeals by Applicants/Clients of Decisions by a Rehabilitation Counselor or Agency Official 40 TAC sec.sec.104.1-104.8 The Texas Rehabilitation Commission adopts on an emergency basis new sec.sec.104.1-104.8 of Chapter 104 concerning Informal and Formal Appeals by Applicants/Clients of Decisions by a Rehabilitation Counselor or Agency Official. The new sections adopted on an emergency basis are contemporaneously proposed for public comment in this issue of the Texas Register . The purpose of the emergency adoption is to comply with the 1992 and 1993 amendments to the Rehabilitation Act of 1973. The new sections are adopted on an emergency basis under Texas Civil Statutes, Article 6252-13a, sec.51(d), which provides emergency rulemaking powers, and under Texas Human Resources Code, sec.111.018, which provides the Texas Rehabilitation Commission with rulemaking powers. sec.104.1. Purpose and Scope. (a) Purpose. The purpose of these rules is to provide the Texas Rehabilitation Commission with a system for the institution, conduct, and determination of "informal" and "formal appeals" as those terms are defined herein. These rules shall be liberally construed in accordance with the purpose for which they were adopted. (b) Statutory Authority. These rules are created under the authority delegated to the Commission by the Rehabilitation Act of 1973, as amended, 29 United States Code sec.701 et seq and Department of Education Regulations at 34 Code of Federal Regulations sec.361.48. The Administrative Procedure and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a, does not apply to these hearings which are conducted pursuant to federal law. (c) Scope. (1) This chapter applies to client (applicant) appeals and hearings before the Texas Rehabilitation Commission. (2) These rules shall be construed to insure fair and expeditious determinations. (3) These rules supplement the procedures required by law. sec.104.2. Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Rehabilitation Act of 1973 as amended, 29 United States Code, sec.701 et seq. Appellant-An individual who has filed a Petition for Administrative Hearing. Applicant-An individual who has applied for services under the Act, but for whom an eligibility determination has not been made. As used in these rules, unless specifically denoted, the term "client" and "applicant" are synonymous. Authorized Representative -An attorney authorized to practice law in the State of Texas and/or, a person designated by the applicant or client to represent them. Client-An individual who has been determined to be eligible for services by the Commission pursuant to the Act and Commission rules. As used in these rules, unless specifically denoted, the term "client" and "applicant" are synonymous. Client Assistance Program (CAP)-The program created by the Act which provides assistance in informing and advising clients and applicants of all available benefits under the Act. CAP provides assistance and advocacy in pursuing legal, administrative, or other appropriate remedies to ensure protection of the client's rights under the Act if requested by the client or the client's authorized representative. Commission-The Texas Rehabilitation Commission, its officers and agents. Director of State Unit/Commissioner-The Commissioner of the Texas Rehabilitation Commission. Formal Appeal-The timely filing of a Petition for Administrative Hearing due to a client's continued dissatisfaction with a decision of the Commission regarding the provision or denial of services. Hearing-A due process formal appeal conducted under these rules by an Impartial Hearing Officer regarding the nature and scope of the allegations set forth in the client's Petition for Administrative Hearing. This term includes pre-hearing conferences. Hearing Completion Date-The date set by the Impartial Hearing Officer which closes the period during which the parties may submit further evidence into the record or the date the Impartial Hearing Officer receives the hearing transcript, whichever is later. Impartial Hearing Officer (IHO)-Individual who is appointed to hear a formal appeal pursuant to 104.5(b) of this title (relating to Formal Appeal). Informal Appeal or Review-A communication or series of communications of dispute resolution by or between a client and a Commission official which seeks to resolve the client's dissatisfaction with any decision made by a Commission rehabilitation counselor or coordinating official concerning the Commission's furnishing or denial of services. Inquiries and Hearings Unit-A unit of the Texas Rehabilitation Commission's Office of Special Services which provides, among other functions, administrative support to the Impartial Hearing Officer during the formal appeal process. Party-An individual or agency named or admitted to participate in a formal appeal before the Commission. Record-The official record of a formal appeal includes all of the following: pleadings; motions; intermediate rulings; orders; evidence received or considered; statements of matters officially noticed; questions and offers of proof; objections and rulings on objections; the IHO decision; any other decision, opinion, or report by the IHO or Commissioner; and all Commission memoranda or data, including client files, submitted to or considered by the IHO or the Commissioner. Respondent-The Texas Rehabilitation Commission. Rule-Any written Commission statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of the Commission. The term includes the amendment or repeal of a prior rule, but does not include statements concerning only the internal management or organization of the Commission and not affecting private rights or procedures. The term does not include certain proceedings excluded by the Act. Standard of Review-The criteria for the Travis County District Court to remand or overturn a final decision of the Commissioner. State Plan-The Commission is required by the Act to submit to the Department of Education a state plan covering a three-year period which describes the State's vocational rehabilitation and independent living programs and the plans and policies to be followed in carrying out those programs. sec.104.3. General Provisions. (a) Jurisdiction. (1) The Impartial Hearing Officer acquires jurisdiction over a case after a client files a Petition for Administrative Hearing and the IHO is appointed pursuant to sec.104.5(b) of this title (relating to Formal Appeal). (2) A Petition for Administrative Hearing shall be considered filed on the date the Petition is received and date-stamped by the Inquiries and Hearings Unit. (3) The IHO's authority is limited to a review of a client's dissatisfaction with the provision or denial of services by a rehabilitation counselor or agency official. The IHO does not have authority to: (A) change or alter the rules, policies, or procedures of the Commission; (B) hear alleged violations of the Americans with Disabilities Act, sec.504 of the Act, or other federal laws; or (C) hear or decide class actions. (b) Conduct and Decorum. Appropriate conduct and decorum shall be maintained and enforced by the IHO. Every party, witness, attorney, or other representative shall participate in all proceedings with proper dignity, courtesy, and respect for the Commission, the IHO, and all other parties. Attorneys and other representatives of parties shall observe and practice a high standard of ethical behavior. (c) Computation of Time. (1) Unless otherwise required by law in computing any period of time prescribed or allowed by these rules, the date of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless such day is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor legal holiday. (2) Unless otherwise provided by statute, the time for filing any pleading may be extended by order of the IHO at the request of any party upon written motion duly filed with the Inquiries and Hearings Unit prior to the expiration of the applicable period of time for the filing of same. Said motion shall include a showing that there is good cause for such extension of time and that the need therefore is not caused by neglect, indifference, or lack of diligence of the movant. A copy of any such motion shall be served upon all other parties of record to the proceeding contemporaneously with the filing thereof. Any party may file written pleadings contesting a motion to extend which shall be served upon all other parties contemporaneously with the filing thereof. (3) The date upon which a pleading or motion is filed is the date on which it is received and date-stamped by the Inquiries and Hearings Unit. (4) Unless specifically stated otherwise, "days" as used in these rules means calendar days. (d) Appearances and Right to Representation. Any party may appear on his/her own behalf or may be represented by an attorney at law in good standing with the State Bar of Texas or by an authorized representative. The IHO may require any person appearing in a representative capacity to provide such evidence of his authority as the IHO may deem necessary. (e) Notice of Right to Formal Appeal. (1) Subject to the provisions of 34 Code of Federal Regulation sec.361.48, the Commission is responsible for providing notice to all parties as required therein and by other applicable law. (2) The IHO shall issue notice of the date, time, and location for the hearing. (f) Confidentiality. All personal information regarding applicants or clients in the possession of the Commission must be used only for purposes directly connected with the administration of the Act. Information may not be shared with advisory or other bodies which do not have official responsibility for administration of the Act. (g) Testimony Under Oath or Affirmation. In any hearing, the IHO shall administer an oath or affirmation before permitting testimony from any witness. (h) Class Actions. Class actions are not permitted under these rules. (i) Reasonable Accommodation. The Commission shall provide reasonable accommodation to the client or other individuals with disabilities, upon request, for purposes of the appeal process as required by the Americans with Disabilities Act of 1990, 42 United States Code, sec.12101 et seq and sec.504 of the Act. (j) Stay of Official Acts or Services. A request for an informal or formal appeal does not of itself stay an official act of or the provision of services by the Commission unless the official act or services are stayed by controlling law. (k) Limitations on Number of Witnesses. The IHO has the right in any proceeding under these rules to limit the number of witnesses whose testimony will be repetitious and to set time limits in order to exclude irrelevant, immaterial, or unduly repetitious testimony, so long as all viewpoints are given a reasonable opportunity to be heard. (l) Mileage and Witness Fees. (1) An individual who is not a party and who is subpoenaed or otherwise compelled to attend any hearing or proceeding to give testimony or to produce documents is entitled to receive: (A) mileage, in the same amount per mile as the mileage travel allowance for State employees, for traveling to and returning from the place of the hearing or the place where the deposition is taken, if the place is more than 25 miles from the individual's place of residence; and (B) a fee of not less than $10 a day for each day or part of a day the individual is necessarily present; provided, in lieu of such $10 fee, a witness will receive a fee equal to the per diem travel allowance of a State employee if such amount exceeds $10. (2) Mileage and fees to which a witness is entitled under this rule shall be paid by the party at whose request the individual appears or at whose request the deposition is taken. (m) Continuation of Services. Pursuant to the Act, pending a final decision by the IHO or the resolution of an informal or formal appeal, the Commission shall not institute a suspension, reduction, or termination of services being provided under the individualized written rehabilitation program (IWRP), unless such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the client. In the case of a client who has completed a term of training or similar services prior to the appeal, and the next term has not yet begun (prior to the current appeal), it is understood that such training or services are not being provided. sec.104.4. Informal Appeal. (a) A client may seek a timely review of his/her dissatisfaction with a decision by the rehabilitation counselor, the area manager, and the regional program director, in that order. An alternative dispute resolution process may be used upon agreement of the client and the Commission. (b) An informal appeal may not be used as a means to delay a formal appeal before an IHO unless the parties jointly agree to a delay. The rehabilitation counselor shall immediately inform the client of his/her right to petition for a formal appeal in lieu of initiating the informal appeal process. During the informal appeal process, the Commission shall maintain a file of all documentation, decisions, and actions throughout the process. The parties shall jointly agree on the applicable dates, times, and locations for the meetings. sec.104.5. Formal Appeal. (a) Formal Appeal. The formal appeal process commences with the filing of a Petition for Administrative Hearing with the Commission's Inquiries and Hearings Unit. (b) Role of the Inquiries and Hearings Unit. Upon receipt of the Petition for Administrative Hearing, the Inquiries and Hearings Unit shall: (1) acknowledge receipt of the Petition for Administrative Hearing (via certified mail, return receipt requested) and advise the Appellant of the availability of the Client Assistance Program, including the address and telephone number within five days of receipt of the Petition for Administrative Hearing; (2) file stamp the Petition and record a docket control number for the appeal; (3) select the IHO, who is appointed by the Commissioner, on a random basis from a panel of individuals pursuant to the Rehabilitation Act Amendments of 1992, (Public Law 102-569) within ten days of receipt of the Petition for Administrative Hearing and immediately forward a copy of the Petition for Administrative Hearing to the IHO; (4) forward a copy of the Petition for Administrative Hearing to the Commission representative and the Legal Services Division within two days of receipt of Petition for Administrative Hearing; (5) provide administrative support to the IHO as follows: (A) serve as the custodian of records for all documents, motions, pleadings, etc., directed to the IHO; (B) coordinate and schedule all dates, meetings, hearings, etc.; (C) make all necessary arrangements for the formal appeal: (i) Schedule and set up the hearing location; (ii) Retain the services of a certified shorthand reporter to prepare a transcript of the proceedings; (iii) Provide any requested reasonable accommodations; (6) compile and maintain the official record of the appeal. (c) Impartial Hearing Officer. (1) Qualifications. The IHO: (A) cannot be an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education); (B) cannot be a member of the Texas Rehabilitation Advisory Council (of the Act, sec.105, as amended in 1992); and (C) must have knowledge of the delivery of vocational rehabilitation services, the State Plan under the Act, sec.101, the federal regulations, and Commission rules governing the provision of such services and training with respect to the performance of official duties; (D) must not have been involved in previous decisions regarding the vocational rehabilitation applicant or client; (E) must have no personal or financial interest that would conflict with his/her objectivity; and (F) must have, in addition to all of the above, successfully completed impartial hearings training presented by the Commission. (2) Powers and Duties. (A) The IHO shall have the authority and duty to: (i) Conduct a full, fair, and impartial hearing; (ii) take action to avoid unnecessary delay in the disposition of the proceeding; and (iii) Maintain order. (B) The IHO shall have the power to regulate the course of the hearing and the conduct of the parties and authorized representative(s), including the power to: (i) administer oaths; (ii) take testimony; (iii) rule on questions of evidence; (iv) rule on discovery issues; (v) issue orders relating to hearing and pre-hearing matters, including orders granting permission to subpoena witnesses and imposing sanctions regarding discovery; (vi) limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations; (vii) admit or deny party status; (viii) grant continuance(s); (ix) require parties to submit legal memoranda, proposed findings of fact, and conclusions of law; (x) make findings of fact and conclusions of law; and (xi) Issue decisions. (C) An IHO shall disqualify him/herself or shall excuse him/herself on the same grounds and under the same circumstances as specified in Texas Rules of Civil Procedure (Tex R. Civ. P.) 18b. (D) Substitution of Impartial Hearing Officers. (i) If for any reason an IHO is unable to continue presiding over a pending hearing or issue a decision after the conclusion of the hearing, another IHO may be designated as a substitute in accordance with applicable law and these rules. (ii) The substitute IHO may use the existing record and need not repeat previous proceedings, but may conduct further proceedings as necessary and proper to conclude the hearing and render a decision. (d) Ex Parte Communications. Unless required for the disposition of ex parte matters authorized by law, the IHO may not communicate, directly or indirectly, in connection with any issue of fact or law with the Commissioner or any party or a party's representative, except upon notice to all parties. (e) Pre-Hearing Procedures. (1) Pre-hearing Conference(s). (A) When appropriate, the IHO may hold a pre-hearing conference to resolve matters preliminary to the hearing. (B) A pre-hearing conference may be convened to address preliminary matters including the following: (i) issuance of subpoenas; (ii) factual and legal issues; (iii) stipulations; (iv) clarification of the issues at the discretion of the IHO; (v) requests for official notice; (vi) identification and exchange of documentary evidence; (vii) admissibility of evidence; (viii) identification and qualification of witnesses; (ix) motions; (x) discovery disputes; (xi) order of presentation; (xii) scheduling; (xiii) settlement conferences; and (xiv) such other matters as will promote the orderly and prompt resolution of the issues and conduct of the hearing. (C) Among other matters, as stated in subsection (b) of this section, an IHO may order: (i) that the parties jointly discuss the prospects of settlement or stipulations or other dispute resolution methods approved herein and be prepared to report thereon at the pre-hearing conference; (ii) that the parties file and be prepared to argue preliminary motions at the pre-hearing conference; (iii) that the parties be prepared to specify the controlling factual and legal issues in the case at the pre-hearing conference; and (iv) that the parties make a concise statement of undisputed facts and issues at the pre-hearing conference. (D) At the discretion of the IHO, all or part of the pre-hearing conference may be recorded or transcribed. (E) The IHO may, after acquiring jurisdiction, issue an order requiring a pre- hearing "Statement of the Case." The parties shall, within 14 days of service, file a statement specifying the party's present position on any or all of the following as required by the IHO. Parties shall supplement this statement on a timely basis. The statement shall include: (i) the disputed issues or matters to be resolved; (ii) a brief statement of the facts or arguments supporting the party's position in each disputed issue or matter; (iii) a list of facts or exhibits to which a party will stipulate; (iv) a list of the witnesses which each party intends to call at the hearing, including a designation of each as either a fact or expert witness, and a brief statement summarizing the testimony and/or opinions (experts) of each witness; and (v) a description of the discovery, if any, the party intends to engage in and an estimate of the time needed to complete discovery. (2) Pre-hearing Orders. (A) The IHO may issue a pre-hearing order reciting the actions taken or to be taken with regard to any matter addressed at the pre-hearing conference. (B) The pre-hearing order shall be a part of the hearing record. (C) If a pre-hearing conference is not held, the IHO may issue a pre-hearing order to regulate the conduct of the proceedings of the formal hearing. (3) Settlement Conferences. (A) Upon request of any party and approval by the IHO, or at the IHO's discretion, a conference may be held to address settlement possibilities through a dispute resolution methodology approved herein. (B) Settlement discussions shall not be made a part of the case record. (C) This section is not in derogation of the agency's and the parties' ability to settle cases independently of the Impartial Hearing Officer. (4) Stipulations. (A) The parties, by stipulation, may agree to any substantive or procedural matter. (B) A stipulation shall be filed in writing or entered on the record at the pre-hearing (or hearing). (C) The IHO may require additional development of stipulated matters. (f) Pleadings. (1) In a formal appeal all pleadings, including the Petition for Administrative Hearing, for which no other form is prescribed, shall contain: (A) the name of the party making the pleading; (B) the names of all other known parties; (C) a concise statement of the facts alleged and relied upon; (D) a prayer stating the type of relief, action, or order desired; (E) any other matter required by law; (F) a certificate of service, as required by these rules; and (G) the signature of the party making the pleading or the party's authorized representative. (2) Any pleading filed pursuant to a formal appeal may be amended up to 14 days prior to the hearing. Amendments filed after that time will be accepted at the discretion of the IHO. (3) 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 Commission. All pleadings relating to any matter pending before the Commission shall be filed with the IHO through the Inquiries and Hearings Unit. (4) All pleadings shall be typed or printed on 8-1/2 by 11-inch paper with a one inch margin. Reproductions are acceptable, provided all copies are clear and permanently legible. (5) 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. (6) The party or the party's designated 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. (g) Discovery. (1) Forms and scope of discovery. (A) Discovery is the process by which a party may, prior to the hearing, obtain evidence which is relevant to the subject matter of the hearing. (B) The parties are entitled to conduct the following forms of discovery: (i) oral or written depositions of any party or non-party; (ii) requests for Admission; (iii) interrogatories; and (iv) requests for production or examination. (C) Scope of discovery. Parties may obtain discovery regarding any matter which is relevant to the subject matter of the hearing or which is reasonably calculated to lead to the discovery of evidence which would be admissible at the hearing. Unless otherwise specifically stated in this section, discovery is to be conducted pursuant to Tex.R.Civ.P. (D) All discovery requests should be directed to the party from which discovery is being sought. (E) Copies of discovery requests and documents filed in response thereto shall be served on all parties and should not be filed with the IHO unless directed by the IHO to do so or when in support of objections, motions to compel, motions for protective orders, or motions to quash. (F) All parties will be afforded a reasonable opportunity to file objections and motions to compel with the IHO regarding any and all discovery requests. (2) Depositions. (A) After the filing of a Petition for Administrative Hearing (TRC-505) any party may take the testimony of any person, including a party, upon oral or written examination. Leave of the IHO is required to take the deposition of a party prior to an appearance date. (B) Reasonable notice must be served in writing by the party or the party's authorized representative proposing to take a deposition upon oral examination to every other party or the party's authorized representative. The notice shall state the name of the deponent, the time and the place of the taking of the deposition, and if the production of documents or tangible things is desired, a designation of the items to be produced by the deponent which describes each item with reasonable particularity. The notice shall also state the identity of persons who will attend other than the witness, parties, authorized representatives and their employees, and the officer taking the deposition. If any party intends to have any other persons attend, that party must give reasonable notice to all parties of the identity of such other persons. (C) When the deponent is a party, notice proposing to take a deposition served upon the party or the party's authorized representative shall have the same effect as a subpoena served on the party. If the deponent is an agent or employee who is subject to the control of a party, notice which is served upon the party or the party's authorized representative shall have the same effect as a subpoena served on the deponent. A party or a party's agents, employees, or persons subject to that party's control, may be compelled to produce designated documents or tangible things if the notice sets forth the individual items or categories of items to be produced with reasonable particularity. (D) After the filing of a Petition for Administrative Hearing (TRC-505), any party may take the testimony of any person, including a party, by deposition upon written questions. A party proposing to take depositions upon written questions shall serve them upon every other party or the party's authorized representative with written notice ten days before the deposition is to be taken. The notice shall state the name and address of the deponent, the hearing in which the deposition is to be used, the name or descriptive title and address of the officer before whom the deposition is to be taken, and if the production of documents or tangible things is desired, a designation of the items to be produced by the deponent which describes each item with reasonable particularity. (E) Any party may subpoena an individual who is not a party in order to take the testimony of that person upon oral or written examination. The procedure for issuance of subpoenas is set out at paragraph (6) of this subsection. (F) Upon proof of service of a notice to take a deposition, written or oral, any officer authorized to take depositions and any certified shorthand reporter shall immediately issue and cause to be served upon the witness a subpoena directing him to appear before the officer at the time and place stated in the notice for the purpose of giving a deposition. (G) A witness may be compelled by subpoena duces tecum to produce books, papers, documents, or tangible things within his care, custody or control. The subpoena duces tecum shall direct with particularity the witness to produce, at such time and place designated, documents or tangible things which constitute or contain evidence or information relating to any of the matters within the scope of the hearing. (3) Requests for Admission. (A) At any time after filing of the Petition for Administrative Hearing, a party may serve upon any other party a written request for the admission, for purposes of the pending hearing only, of the truth of any matters within the scope of these rules set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. (B) Copies of documents shall be served with the request unless they have been, or are otherwise furnished or made available for inspection and copying. Whenever a party is represented by an authorized representative, service of a request for admissions shall be made on the party's representative. A true copy of a request for admission or of a written answer or objection, together with proof of the service thereof, shall be filed promptly with the Inquiries and Hearings Unit. (C) Each matter to which an admission is requested shall be separately set forth. The matter is admitted without necessity of an order unless, within 30 days after service of the request, or within such time as the IHO may allow, or as otherwise agreed by the parties, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or the party's representative. If objection is made, the reason therefore shall be stated. (D) The answer shall specifically deny the matter or set forth in detail the reasons that the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or easily obtainable by him is insufficient to enable him to admit or deny. (E) The IHO may permit withdrawal or amendment of responses and deemed admissions upon a showing of good cause for such withdrawal or amendment if the IHO finds that the parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby. Any admission made by a party under this rule is for the purpose of the pending action only and neither constitutes an admission by the party for any other purpose nor may be used against that party in any other proceeding. (4) Interrogatories. (A) Any party may serve upon any other party written interrogatories to be answered by the party served, or the party's authorized representative. (B) When a party has designated an authorized representative, service of interrogatories and answers to interrogatories shall be made on the representative. (C) Interrogatories may relate to any matters which are relevant to the subject matter of the hearing, but the answers, subject to any objections as to relevance, may be used only against the party answering the interrogatories. (D) The party upon whom the interrogatories have been served shall serve answers on the party submitting the interrogatories within the time specified by the party serving the interrogatories, which specified time shall not be less than 30 days after the service of the interrogatories. The IHO, on motion and notice for good cause shown, may enlarge or shorten the time for serving answers or objections. (E) The number of questions including subsections in a set of interrogatories shall be limited so as not to require more than thirty answers. No more than two set of interrogatories may be served by a party to any other party except by agreement or as permitted by the IHO. (5) Requests for Production or Examination. (A) Any party may serve on any other party a request to produce and permit he requesting party or the party's authorized representative to inspect or copy any designated documents which are relevant to the subject matter of the hearing and which are in the possession, custody, or control of the party to whom he request is directed. (B) The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner for making the inspection and performing the related acts. (C) The party upon whom the request is served shall serve a written response which shall state, with respect to each item or category of items, that inspection or other requested action will be permitted as requested, and he shall thereafter comply with the request, except only to the extent that he makes objections in writing to particular items, or categories of items, stating specific reasons why such discovery should not be allowed. (D) A party who produces documents for inspection shall produce them as they are kept in the usual course of business, or shall organize and label them to correspond with the categories in the request. (E) The request shall be served upon every party to the action. The party upon whom the request is served shall serve a written response and objections, if any, within 30 days after the service of the request. The time for making a response may be shortened or lengthened by the IHO upon a showing of good cause. (6) Subpoenas. (A) Any party may subpoena a witness for the purposes of taking their deposition by oral or written examination or to compel testimony at the hearing. (B) A party may not obtain a subpoena without having petitioned the IHO for an Order Granting the Issuance of a Subpoena upon a showing of good cause as to the need for the subpoena. (C) Upon a finding that good cause exists for the issuing of a subpoena, the IHO may enter an Order Granting the Issuance of a Subpoena. (D) The party seeking the subpoena must then present the IHO Order Granting the Issuance of a Subpoena to a certified shorthand reporter or any officer authorized to issue subpoenas who shall immediately issue and cause to be served upon the witness a subpoena directing him to appear at the time and place stated in the Order. (E) All costs associated with the issuing of a subpoena are to be borne by the requesting party. (F) The form of the subpoena and the service thereof shall be in conformance with the Tex. R.Civ.P. (G) If the witness fails to comply with the subpoena, the party requesting the subpoena may bring suit to enforce the subpoena in a district court either in Travis County or in the county in which the subject hearing will be held. (7) Compelling Discovery. (A) In the event of a discovery dispute, a party, upon reasonable notice to all other parties, may file a motion to compel or file a motion for protective order with the IHO. Such motions shall contain a sworn certificate by the party filing the motion that efforts to resolve the discovery dispute without the necessity of IHO intervention were attempted and failed. (B) At the IHO's discretion, an order compelling discovery or a protective order may be issued to protect the movant from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights. The IHO's authority extends to, but is not limited by any of the following: (i) ordering that requested discovery be answered or produced; (ii) ordering that the requested discovery not be sought in whole or in part, that the extent or subject matter of discovery be limited, or that it not be undertaken at the time or place specified; (iii) ordering that the discovery be undertaken only by such method, upon such terms and conditions, or at the time and place directed by the IHO; and (iv) ordering that, for good cause shown, results of discovery be sealed or otherwise adequately protected, that its distribution be limited, or hat its disclosure be restricted. (C) Sanctions. (i) When a party does not comply with the IHO order compelling discovery, the requesting party may, upon reasonable notice to all other parties, apply to the IHO for sanctions. A party may not request sanctions without having first obtained an order compelling discovery. (ii) If a party, or an officer, director, or an authorized representative of a party, fails to comply with an order compelling discovery, the IHO may, after opportunity for hearing, make orders in response to such failure, including any of the following: (I) preventing the disobedient party from further discovery of any kind, or of a particular kind; (II) deeming any facts pertaining to the order, or any other facts, to be established, as claimed by the moving party; (III) disallowing the disobedient party from supporting or opposing designated claims or defenses, or prohibiting the party from introducing designated matters into evidence; and (IV) striking pleadings or parts of pleadings, staying further action until the order is obeyed, dismissing the proceeding with or without prejudice, or rendering a default judgment against the disobedient party. (iii) The IHO may impose any of the sanctions listed above on a party who abuses the discovery process in seeking or resisting discovery or who files a request, response, or answer that is frivolous, oppressive, or made for the purpose of delay. (iv) A party who fails to respond to or fails to supplement a response to a discovery request may not present evidence that the party was under a duty to provide in a response or supplemental response, and may not offer the testimony of an expert witness or of any other person having knowledge of the discoverable matter, unless the IHO finds good cause to permit the evidence despite the noncompliance. The burden of establishing good cause is upon the party offering the evidence, and good cause must be shown in the record. (v) Unless permitted by law, party representatives shall not communicate with the IHO or the Commissioner without the knowledge of all other parties . (The IHO may impose sanctions for impermissible communications.) (vi) The IHO shall state the specific basis for any sanction in the record or in a written order. A sanctioned party has the right to appeal the sanction to the Commissioner. (h) Dismissal Without Hearing. (1) The IHO may entertain motions for dismissal without a hearing for the following reasons: (A) failure to prosecute; (B) unnecessary duplication of proceedings or res judicata; (C) withdrawal; (D) moot questions; (E) lack of jurisdiction; (F) failure to raise a material issue in the pleading; (G) failure of a party to appear at a scheduled hearing. (2) If the IHO finds that such motion should be granted the IHO will so order, and the Commissioner may enter a final order of dismissal. (i) Motions. (1) Unless otherwise provided by these rules the following shall apply. (A) A party may move for appropriate relief before or during a hearing. (B) A party shall submit all motions in writing or orally at a hearing. (C) Written motions shall: (i) be filed no later than 15 days before the date of the hearing, except where good cause is stated in the motion, the IHO may permit a written motion subsequent to that time; (ii) state concisely the question to be determined; (iii) be accompanied by any necessary supporting documentation; and (iv) be served on each party. (D) An answer to a written motion shall be filed on the earlier of: (i) seven days after receipt of the motion; or (ii) on the date of the hearing. (E) On written notice to all parties or with telephone consent of all parties, the IHO may schedule a conference to consider a written motion. (F) The IHO may reserve ruling on a motion until after the hearing. (G) The IHO may issue a written decision or state the decision on the record. (H) If a ruling on a motion is reserved, the ruling shall be in writing and may be included in the IHO's decision. (I) The filing or pendency of a motion does not alter or extend any time limit otherwise established by these rules. (2) Continuance(s) may be granted by the IHO in accordance with applicable law. Motions for continuances shall be in writing or stated in the record and shall set forth the specific grounds upon which the party seeks the continuance. (3) 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 ten days before the date or deadline in question. A motion filed less than ten days before the date or deadline in question must contain a certification that the movant contacted the other party(ies) and whether or not it is opposed by any party(ies). Further, if a continuance to a certain date is sought, the motion must include a proposed date or dates and must indicate whether the party(ies) contacted agree on the proposed new date(s). (j) Hearing. (1) The IHO shall set the date and time for the hearing. The location shall be the Commission's regional or area office nearest the Appellant's residence or as agreed to by the parties. (2) Order of Procedure at the Hearing. (A) 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 Respondent may make a similar statement, and any other parties will be afforded similar rights as determined by the IHO. Each party is allowed ten minutes for such statement. (B) Evidence shall then be introduced by the Appellant. The Respondent and any other parties shall have the opportunity to cross-examine each of the Appellant's witnesses. (C) Cross-examination is not limited solely to matters raised on direct examination. Parties are entitled to redirect and recross examination. (D) Unless the statement has already been made, the Respondent may briefly state the nature of the claim or defense, what the Respondent expects to prove, and the relief sought. (E) Evidence, if any, shall be introduced by the Respondent. The Appellant and any other parties shall have the opportunity to cross-examine each of the Respondent's witnesses. (F) Any other parties may make statements and introduce evidence. The Appellant and Respondent shall have opportunity to cross-examine the other parties' witnesses. (G) The parties may present rebuttal evidence. (H) The parties may be allowed closing statements at the discretion of the IHO. (I) The IHO may permit deviations from this order of procedure in the interest of justice or to expedite the proceedings. (J) Parties shall provide four copies of each exhibit offered. (3) No evidence shall be admitted which is irrelevant, immaterial, or unduly repetitious. (4) 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 IHO may limit the documents received to those which are typical and representative. The IHO may also require that an abstract of relevant data from the documents be presented in the form of an exhibit, provided that all parties of record or their representatives be given the right to examine the documents from which such abstracts were made. (C) The following laws, rules, regulations, and policies are officially noticed: (i) the Rehabilitation Act of 1973, as amended, 29 United States Code, sec.701 et seq; (ii) Department of Education Regulations, 34 Code of Federal Regulations, sec.361.48; (iii) Texas Human Resources Code, sec.111 et seq; (iv) TRC State Plan for Vocational Rehabilitation Services; (v) TRC Rehabilitation Services Manual; and (vi) TRC Administrative Policies and Procedures Manual. (D) Prepared Testimony. In all proceedings and after service of copies upon all parties of record at such time as may be designated by the IHO, 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. (E) Exhibits. (i) Exhibits shall not exceed 8 1/2 by 11 inches (unless they are folded to that size). Maps, drawings, and other exhibits which are not the required size shall be rolled or folded so as not to unduly encumber the record. Exhibits not conforming to this rule may be excluded. (ii) Exhibits shall be limited to facts material and relevant to the issues involved in a particular proceeding. (iii) The original of each exhibit offered shall be tendered to the court reporter for identification. (iv) In the event an exhibit has been identified, objected to, and excluded, the IHO shall determine whether or not the party offering the exhibit withdraws the offer, and, if so, permit the return of the exhibit. If the excluded exhibit is not withdrawn it shall be given an exhibit number for identification, shall be endorsed by the IHO with a ruling, and shall be included in the record for the only purpose of preserving the exception. (F) Offer of Proof. When testimony on direct examination is excluded by ruling of the IHO, the party offering such evidence shall be permitted to make an offer of proof by dictating or submitting in writing the substance of the proposed testimony prior to the conclusion of the hearing. Such offer of proof shall be sufficient to preserve the point for review by the Commissioner. The IHO may ask such questions of the witness as deemed necessary to satisfy that the witness would testify as represented in the offer of proof. An alleged error in sustaining an objection to questions asked on cross-examination may be preserved without making an offer of proof. (5) Failure to Attend Hearing and Default. If, after receiving notice of a hearing, a party fails to attend a hearing, the IHO may proceed in that party's absence and, where appropriate, may issue a decision against the defaulting party. (k) Impartial Hearing Officer Decision. (1) Within 30 days of the hearing completion date, the IHO shall issue a decision which shall contain: (A) findings of fact and conclusions of law, separately stated; and (B) if appropriate, an order. (2) The Inquiries and Hearings Unit shall submit the IHO decision to the Commissioner with a copy to each party. sec.104.6. Action by the Commissioner. (a) The Commissioner cannot delegate the responsibility for making any final Commission decision to any other officer or employee of the Commission. (b) Within 30 days of the mailing of the IHO's decision, the Commissioner will decide whether or not to formally review the decision by studying the decision and the official case record. (1) If the Commissioner decides not to formally review the IHO's decision, the decision of the IHO becomes the final Commission decision, and the Commissioner will issue an order affirming the decision of the IHO. (2) If the Commissioner decides to formally review the IHO's decision, written notice of this decision will be sent to the Appellant by certified mail, return receipt requested. (3) The parties will then have 15 days from the date the notice that the Commissioner has decided to review the IHO's decision is mailed by the Inquiries and Hearings Unit to submit any additional relevant evidence. (4) Within 30 days of the mailing of notice of intent to review the IHO's decision, the Commissioner shall make a final decision and provide a full report to all parties in writing of that decision, including the findings and grounds for the decision. (c) The Commissioner's decision to review the IHO's decision will be based on the following standards of review. (1) The Commissioner may not overturn or modify a decision of an IHO, or part of a decision, that supports the position of the Appellant unless the Commissioner concludes, based on clear and convincing evidence, that the decision of the IHO is clearly erroneous on the basis of being contrary to federal or state law, including policy. (2) The review shall include all applicable laws, rules, regulations, policies, and procedures. (3) The review may be made on all questions of law, fact, and written policy and procedure. (4) The review may result in affirming the decision of the IHO in whole or in part or reversing or remanding the case to the IHO for further proceedings. (5) The review may result in reversing or remanding the decision of the IHO when the record of the hearing or decision contains any one or more of the following, and the decision is found to be: (A) in violation of constitutional, statutory, regulatory, or written policy provisions; (B) in excess of the statutory authority of the Commission; (C) made upon unlawful procedure; (D) affected by other error of law, regulation, or written policy; (E) not reasonably supported by the evidence; or (F) arbitrary, capricious, or characterized by abuse of or clearly unwarranted exercise of discretion. (6) When none of the conditions in paragraph (5) of this subsection are present in the record of the hearing or the decision, review shall result in affirming the decision of the IHO. sec.104.7. Motions For Rehearing. (a) A motion for rehearing is prerequisite to a judicial appeal. A motion for rehearing must be filed by a party within 20 days after the date the party receives notice of the Commissioner's final decision or order. (b) Replies to a motion for rehearing must be filed with the Commission within 15 days after the date the motion for rehearing is filed. (c) Commission action on the motion for rehearing must be taken within 30 days of receipt of the motion for rehearing. If agency action is not taken within the 30 day period, the motion for rehearing is overruled by operation of law 30 days after the date the motion for rehearing is received by the Commission. (d) The Commission may, by written order, extend the period of time for filing the motions and replies and taking agency action, except that an extension may not extend the period for Commission action beyond 90 days after the motion for rehearing is received by the Commission. (e) In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the motion for rehearing is received by the Commission. sec.104.8. Judicial Review of Final Order. 29 United States Code sec.722(d)(1), provides the Commissioner with authority to establish procedures for appealing agency decisions including judicial review. Pursuant to that authority, the Commissioner grants exclusive jurisdiction to the district court of Travis County, to hear appeals of final decisions of the Commission. The standard of review will be by substantial evidence. A party may seek judicial review of the final order of the Commission by appealing to the Travis County District Court within 30 days of receipt of notice that a party's motion for rehearing has been overruled. Issued in Austin, Texas, on October 21, 1993. TRD-9331114 Andrea Sargent-Fambles Legal Examiner Texas Rehabilitation Commission Effective date: October 27, 1993 Expiration date: January 26, 1994 For further information, please call: (512) 483-4055