| (a) Appealable actions. This section provides the procedures
for licensees who are dissatisfied with the Agency's action arising
from the operation of BET.
(b) Actions not subject to appeal. The phrase "the
Agency's action arising from the operation of BET" in subsection (a)
of this section does not include the Agency's hiring, firing, or discipline
of Agency employees.
(c) Remedies. Remedies available to resolve dissatisfaction
shall correct the action complained of from the earlier time of:
(1) agreement by the parties about an appropriate remedy;
or
(2) a final resolution under the Randolph-Sheppard
Act that the Agency acted in violation of applicable law, this subchapter,
the requirements of the BET manual, or any instruction by Agency personnel,
or acted unreasonably.
(d) Informal procedures to review dissatisfactions.
At the request of a licensee, the Agency shall arrange for and participate
in informal meetings to quickly resolve a matter of dissatisfaction
arising from the operation or administration of BET. The informal
process is for resolving an issue in controversy quickly and amicably.
It is not for the purpose of denying or delaying the manager's right
to pursue resolution of a matter through a full evidentiary hearing.
At any point during the informal process, either party may elect to
terminate the following informal process procedures:
(1) A licensee may initiate informal procedures by
notifying the Agency in writing, via mail or electronically via email,
through the BET director that the licensee is dissatisfied with a
matter arising from the operation or administration of BET. The written
notice must describe with reasonable particularity the specific matter
in controversy, the date the action occurred, or an approximate date
if the exact date is not known, and the licensee's desired relief
or remedy. If the licensee is dissatisfied with a series of the same
or related actions over a period, the notice shall describe, to the
best of the licensee's ability, the time frame of the events and include
the date of the most recent event about which the licensee is dissatisfied.
(2) To ensure that informal resolution is possible
in a timely manner, the licensee's request to initiate informal proceedings
must be filed with the Agency no later than 20 business days after
the most recent event specified in the request. The Agency shall,
within a reasonable time, arrange a meeting at a location, date, and
time satisfactory to all parties.
(3) The licensee must notify the Agency when filing
a request for informal proceedings if the licensee is an attorney
or will be represented by legal counsel during mediation. The Agency
may be represented by legal counsel only when the licensee is an attorney
or is represented by legal counsel.
(4) Meetings shall take place in an informal environment
and shall be attended by the licensee, a BET staff member with decision-making
authority, and a neutral third party who shall serve as an informal
mediator during the discussions.
(5) The neutral third party shall be an individual
certified in conducting mediations.
(6) The neutral third party's responsibility is to
report to the Agency only that the effort to resolve the matter to
the licensee's satisfaction was or was not successful. If an agreement
is reached, then the actions agreed to with respect to the facility
or licensee shall, prior to the conclusion of the mediation, be reduced
to writing and signed by the licensee and the BET attendee. The parties
shall expeditiously complete all actions called for in the signed
agreement.
(7) The provisions concerning mediation under Chapter
850 of this title (relating to Vocational Rehabilitation Services
Administrative Rules and Procedures) shall not apply to or control
the informal resolution procedures in this subchapter.
(e) Full evidentiary hearing. A manager has the right
to request a full evidentiary hearing to resolve dissatisfaction according
to the following:
(1) A manager has the right to request a full evidentiary
hearing without first going through mediated meetings described in
subsection (d) of this section.
(2) A request for an evidentiary hearing must be made
no later than the 20th business day after the occurrence of the Agency
action about which the manager complains. The VRD director, upon request
of the complaining party, may extend the period for filing a grievance
upon the showing of good cause by the complaining party for such additional
period if such request is made no later than the 20th business day
after the occurrence of the Agency action about which the manager
complains.
(3) A manager requesting a full evidentiary hearing
after the conduct of mediated meetings described in subsection (d)
of this section must request such hearing in writing no later than
the 20th business day after the date on which the neutral third party
in subsection (d) of this section reports an unsuccessful informal
mediation or a party terminates the informal mediation process, whichever
is earlier in time.
(4) A request for a full evidentiary hearing must be
in writing and transmitted to the VRD director by mail or by email.
A request that is postmarked within the designated time frame shall
be considered delivered in a timely manner if properly posted.
(5) The request for a full evidentiary hearing must
describe the specific action with reasonable particularity sufficient
to provide notice as to the action that is alleged to be unreasonable
or in violation of applicable law, this subchapter, the requirements
of the BET manual, or any instruction by Agency personnel. The request
must, to the best of the complainant's knowledge, contain the date
the action occurred, and the law or regulation must be reasonably
identified if an action is alleged to be in violation of law, this
subchapter, the requirements of the BET manual, or regulation. The
request must also identify the desired relief or remedy.
(6) The manager may be represented in the evidentiary
hearing by legal counsel or other representative of the manager's
choice, at the manager's expense.
(7) The Agency shall arrange reader or other communication
services for the manager, if needed, upon request by the manager at
least three business days prior to the hearing date.
(8) The manager shall be notified in writing of the
time and place fixed for the hearing and of the manager's right to
be represented by legal or other counsel.
(9) Selection of the hearing officer.
(A) The hearings coordinator, the Agency's Office of
General Counsel, shall select, on a random basis, a hearing officer
from a pool of individuals qualified according to this section.
(B) The hearing officer shall be an impartial and qualified
individual who:
(i) is not involved either with the Agency's action
that is at issue or with the administration or operation of BET;
(ii) is not an employee of a public agency (other than
an administrative law judge, hearing examiner, or employee of an institution
of higher education);
(iii) has knowledge of the Randolph-Sheppard Act and
any applicable state and federal regulations governing the appeal;
(iv) has received training specified by the Agency
with respect to the performance of official duties; and
(v) has no personal, professional, or financial interest
that would compromise his or her impartiality.
(C) An individual is not considered to be an employee
of a public agency for the purposes of subparagraph (B)(ii) of this
paragraph if the only consideration is that the individual is paid
by the agency to serve as a hearing officer.
(10) Hearings shall be conducted in accordance with
the Randolph-Sheppard Act, Texas Government Code, §2001.051 et seq. , and this subchapter to the extent
that those procedures do not conflict with the Act and its implementing
regulations or this subchapter.
(11) Licensees bringing complaints shall have the burden
of proving their cases by means of a preponderance of the evidence.
Licensees shall present their evidence first. When a hearing is requested
because of administrative action by the Agency against a licensee,
the Agency shall have the burden of proving its case by a preponderance
of the evidence and shall present its evidence first.
(12) Transcription of Proceedings.
(A) Unless precluded by law, the hearing shall be recorded
electronically either by the hearing officer or by someone designated
by the hearing officer. Such recording shall be the official record
of the testimony recorded 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 10 days of the date
for the hearing.
Cont'd... |
