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TITLE 25HEALTH SERVICES
PART 1DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 442INVESTIGATIONS AND HEARINGS
RULE §442.103Procedure for Contested Cases for Counselor and Facility Licenses

(a) At any stage of a disciplinary case, the Commission and a respondent may resolve the case by entering into an agreed order.

(b) The Commission has the right to discovery at any stage of the disciplinary action process.

(c) The Commission, upon investigation/inspection and development of information indicating that grounds may exist to take disciplinary action, shall issue a notice of intent notifying the respondent of the proposed action.

  (1) The notice letter shall be sent via regular first-class and certified mail to the respondent's address of record.

  (2) The notice shall specify:

    (A) the statutes, rules, or orders allegedly violated;

    (B) the factual basis of the alleged violations;

    (C) the disciplinary action the Commission intends to take; and

    (D) notice of an opportunity for a hearing to be held under Subchapter C of the TEX. GOV'T CODE ANN. ch. 2001 (Vernon 2000 & Supp. 2004) (Administrative Procedures Act--APA).

  (3) If the Commission is seeking an administrative penalty, the letter shall also inform the respondent of the amount of the recommended penalty and of the opportunity for a hearing on the violation, the amount of the penalty, or both.

  (4) The letter shall also include the following notices.

    (A) If the respondent does not request a hearing on or before the 20th day after notice is effective, the allegations will be deemed true and the Commission will issue a default final order implementing the proposed action.

    (B) If the respondent requests a hearing but fails to appear at the scheduled hearing, the allegations will be deemed true and the State Office of Administrative Hearings (SOAH) will recommend a default proposal for decision to implement the proposed action.

    (C) Notice is effective five days after the date of mailing.

(d) A respondent must submit a timely written request for a hearing to avoid having the allegations in the notice letter deemed true and a default order implementing the proposed action issued by the Commission. The request for hearing is timely if filed with the Commission or postmarked on or before the 20th day after the notice is effective.

(e) If the respondent fails to request a hearing on or before the 20th day after effective notice, the factual allegations of the notice letter may be deemed true and shall form the basis of a default final order implementing the proposed action.

(f) The Commission may offer the respondent an opportunity to dispose of the case through an agreed order, or proceed to hearing under the APA and SOAH Rules of Procedure, 1 TAC Chapter 155 (2003).

(g) The Commission shall send written notice of the hearing to the respondent's address of record at least ten days before the date of the hearing. The notice shall include:

  (1) the date, time, place and nature of the hearing;

  (2) a statement of the legal authority and jurisdiction under which the hearing is to be held;

  (3) a reference to the particular sections of the statutes and rules involved;

  (4) a short, plain statement of the matters asserted; and

  (5) a statement that if the respondent does not appear at the hearing, the allegations will be deemed true and the action proposed in the notice of hearing may be granted by default.

(h) If the respondent fails to appear at a scheduled SOAH hearing after being given proper notice of the hearing, SOAH shall issue a proposal for decision recommending the proposed action.

(i) If the case is not resolved through agreed order, default decision and goes forward to administrative hearing, the hearing shall be conducted by an administrative law judge employed by SOAH and shall comply with the requirements of the APA and SOAH Rules of Procedure, 1 TAC Chapter 155 (2003).

  (1) At the hearing, parties in attendance shall be allowed to present evidence, to examine witnesses, to cross-examine adverse witnesses, to make argument, and to submit legal authority.

  (2) After the hearing, the administrative law judge shall issue a proposal for decision containing a statement of the reasons for the proposed decision and of each finding of fact and conclusion of law necessary to the proposed decision.

  (3) Exceptions to the proposal for decision, if filed, must be filed with the administrative law judge within 20 days after the date the proposal for decision is mailed. Replies to the exceptions, if any, must be filed with the administrative law judge within 30 days after the date the proposal for decision is mailed.

(j) The Commission's board will consider the proposal for decision in all matters other than an administrative penalty for a licensed chemical dependency counselor at a public meeting and issue an order.

(k) The executive director will consider the proposal for decision regarding an administrative penalty for a licensed chemical dependency counselor.

(l) A motion for rehearing, if filed, must be filed in accordance with the APA. When a motion for rehearing is directed at a default final order, the motion must be supported by evidence and address the following factors:

  (1) failure to answer or appear at the hearing was due to an accident or mistake and was not intentional or the result of a conscious indifference;

  (2) the respondent can present a meritorious defense to the fact findings and legal conclusions in the order; and

  (3) granting the rehearing will not work any injury to the Commission or its mission.

(m) The respondent appealing a final order shall pay to the Commission the cost of preparing the original or a certified copy of the record that is to be transmitted to the reviewing court at rates approved by the Texas Building and Procurement Commission.


Source Note: The provisions of this §442.103 adopted to be effective February 1, 2004, 29 TexReg 221; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8842

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