| (a) Definitions. Definitions for the words and terms
used this section are located in §254.1 of this title (relating
to the Operation of the Texas Department on Aging).
(b) Purpose. The purpose of this section is to establish
procedures for any area agency on aging contractor who is aggrieved
in connection with penalties imposed by the Department, as described
in §254.13 of this title (relating to Compliance with Contractor
Responsibilities, Rewards and Penalties). All notifications sent from
the Department to a contractor during the proposed imposition of a
penalty shall contain information informing the contractor of the
right to appeal, as well as the level of appeal appropriate for the
matter, as described in this section.
(c) Appeal to the Executive Director. The imposition
of a level one penalty may be appealed by presenting a formal protest
to the executive director of the Texas Department on Aging.
(1) The protest shall follow the format described in
subsection (f) of this section.
(2) The contractor shall submit three copies of the
protest to the Executive Director.
(3) The Executive Director shall investigate the protest
and issue a written determination within 30 calendar days upon receipt
of the protest. The decision of the Executive Director is final.
(d) Dispute Resolution Committee. The imposition of
a level two or level three penalty may be appealed by the contractor
by presenting a formal protest, as described in subsections (f)-(h)
of this section, to the Dispute Resolution Committee of the Texas
Department on Aging. When two Department division managers not connected
with the matter cannot be identified, the Department may choose to
refer the protest to a Dispute Resolution Center in Austin, Texas.
(e) Exception. In the event of the level two and level
three penalties relating to the temporary withholding of funds, as
described in §254.13(g)(2)(B) and §254.13(g)(3)(C) of this
title (relating to Compliance with Contractor Responsibilities, Rewards
and Penalties) and/or relating to the disallowance of costs as described
in §260.2(a)(3) of this title (relating to Area Agency on Aging
Fiscal Responsibilities), and prior to presenting a formal protest
to the Dispute Resolution Committee, a contractor may choose to request
a public hearing from the Department, in accordance with the Older
Americans Act, §306(e)(1)-(3).
(f) Formal Protest. A formal protest must contain:
(1) a specified identification of the statutory or
regulatory provision or the contract provision that the contractor
is alleged to have violated;
(2) a specific description of the violation or violations;
(3) a precise statement of the relevant facts;
(4) an identification of the issue or issues to be
resolved; and
(5) arguments and authorities in support of the protest.
(g) Copies. In making a formal protest to the Dispute
Resolution Committee, the contractor shall send five copies of the
protest to the Department. Copies of the protest shall also be sent
by the protesting contractor to other interested parties, i.e., subcontractors
or vendors for the contract(s) involved.
(h) Settlement/Resolution. The Dispute Resolution Committee
shall have the authority to settle and resolve the dispute. The committee
may solicit written responses to the protest from other interested
parties. If the protest/dispute is not resolved by mutual agreement
during the meeting between the contractor and the Dispute Resolution
Committee, the committee will issue a determination which shall be
final. The committee will issue a written determination on the protest
within 30 calendar days following the dispute resolution meeting.
(i) Request for a Hearing before an Administrative
Law Judge. The imposition of a level four penalty may be appealed
by a request from the contractor for a hearing before an administrative
law judge. The request shall be in writing and must state with specificity
the grounds upon which the proposed penalty is appealed and all grounds
upon which the contractor refutes the basis of the proposed penalty.
The request must include:
(1) the dates of all relevant actions;
(2) the names of individuals or organizations involved
in the proposed penalty;
(3) specific statements and documentation which disprove
the findings made by the Department, and/or that the sections of
the Older Americans Act, state law or any rules or regulations cited
in the letter of notification have not been violated; and
(4) A certified copy of the minutes or resolution which
indicates adoption by a majority of the quorum of the contractor's
governing body a request for a hearing before an administrative law
judge.
(j) Conduct of a Hearing before an Administrative Law
Judge. The person or persons so designated in the contract between
the Department and the contractor shall act on behalf of the contractor.
The proceedings and conduct of the hearing shall follow the rules
promulgated in Title 1, Part VII, State Office of Administrative Hearings,
Chapter 155, Rules of Procedure, et seq. The hearing examiner shall
issue a final decision on behalf of the Department.
(k) Time Limitations. A request to appeal any level
of penalties as described in this subsection must be received by the
Department within 30 calendar days following the contractor's receipt
of notification of proposed action by the Department.
(1) In the event that a request for an appeal is not
timely, the appeal will not be considered and the protesting contractor
will be notified in writing.
(2) The contractor may submit written amendments to
a request for an appeal, which must be received by the Department
not less than ten working days prior to the date set for the appeal.
(l) Department responses to a request for an appeal.
Upon receipt of a request for an appeal, the Department shall, within
ten working days:
(1) set a date for the appeal consideration, and/or
hearing, if a hearing is applicable; and
(2) issue a written notice to the contractor by registered
or certified mail, return receipt requested, which shall provide:
(A) a statement of time, date and location of the appeal
consideration or hearing, if a hearing is applicable;
(B) a statement of the legal authority and jurisdiction
under which the appeal is to be held;
(C) a reference to the particular sections of statutes,
regulations and rules involved; and
(D) a summary of the reasons for the proposed penalty
that is being appealed and the evidence on which the proposed penalty
is based.
(m) Effective Date of Penalties. In the event of a
timely appeal under this section, the Department may not make a final
determination regarding its proposed penalties until a requested appeal
and hearing, if applicable, has been granted.
(1) During the appeal process, the Department shall
not proceed with the next levels of penalties, unless it makes the
written determination that by delaying the next levels of penalties,
service interruptions or poor service quality will occur, and/or that
the health and safety of older people will be at risk, and/or an emergency
exists.
(2) If the appeal process results in a final determination
in support of the department's imposition of the penalties, the penalties
will be effective upon the original date of the notification of deficiency
sent by the Department to the contractor.
(n) Appeal to the Assistant Secretary on Aging, United
States Department of Health and Human Services. In accordance with §305(b)(5)(C)
of the Older Americans Act, and 45 CFR, Part 1321, a contractor may
make an appeal to the Assistant Secretary, and the Department shall
conduct a public hearing, when the Department has made a final determination
to:
(1) withdraw the designation of an area agency on aging;
(2) designate an additional planning and service area;
or
(3) divide the state into different planning and service
areas, or otherwise affect the boundaries of the current planning
and service areas.
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| Source Note: The provisions of this §213.7 adopted to be effective September 24, 1996, 21 TexReg 8744; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8842; transferred effective June 15, 2021, as published in the May 28, 2021 issue of the Texas Register, 46 TexReg 3421 |
