SECTION 201.7. Negotiated Rulemaking and Alternative Dispute Resolution

(a) Policy. It is the department's policy to encourage the use of negotiated rulemaking and alternative dispute resolution procedures in appropriate situations.

(b) Negotiated Rulemaking. When the department finds that a rule to be proposed is likely to be complex, controversial, or affect disparate groups, the department may propose to engage in negotiated rulemaking in accordance with Government Code, Chapter 2008.

(1) When negotiated rulemaking is considered, the department's General Counsel, or designee, shall be the department's negotiated rulemaking convener.

(A) The convener shall assist in identifying persons who are likely to be affected by a proposed rule, including those who oppose issuance of a rule. The convener shall discuss with those persons or their representatives as provided in Government Code §2008.052(c).

(B) The convener shall then recommend to the department whether negotiated rulemaking is a feasible method to develop the proposed rule and shall report to the agency on the relevant considerations, including those listed in Government Code §2008.052(d).

(2) Upon the convener's recommendation to proceed, the department may initiate negotiated rulemaking according to the provisions of Government Code, Chapter 2008 and Government Code §2054.121(c)

(c) Alternative Dispute Resolution. The department encourages the fair and expeditious resolution of disputes through alternative dispute resolution (ADR) procedures.

(1) ADR procedures include any procedure or combination of procedures described by Civil Practice and Remedies Code, Chapter 154. ADR procedures are intended to supplement and not limit other dispute resolution procedures available for use by the department.

(2) Any ADR procedure used to resolve disputes with the department shall conform with Government Code, Chapter 2009, and, to the extent possible, the model guidelines for the use of ADR issued by the State Office of Administrative Hearings (SOAH).

(3) Upon receipt of notice of a dispute, the department's Executive Director, in consultation with the department's General Counsel, shall determine whether use of an ADR procedure is an appropriate method for resolving the dispute.

(4) If an ADR procedure is determined to be appropriate, the department's Executive Director shall recommend to the claimant the use of ADR to resolve the dispute. The department's General Counsel will collaborate with the claimant to select an appropriate procedure for dispute resolution and implement the agreed upon procedure consistent with SOAH's model guidelines.

(5) ADR for Breach of Contract Claims. Resolution of breach of certain contract claims brought by a contractor against the department shall conform to the requirements of Government Code, Chapter 2260. The department adopts by reference the Office of the Attorney General's rules regarding the negotiation and mediation of certain contract disputes (1 Texas Administrative Code Part 3, Chapter 68).

(6) The requirements of Government Code, Chapter 2260, and the Office of the Attorney General's model rules are required prerequisites to a contractor filing suit in accordance with Civil Practices and Remedies Code, Chapter 107.

(d) The department's General Counsel, or designee, shall coordinate the implementation of the policy set out in subsection (a) of this section in accordance with state law and provide necessary training. The department's General Counsel, or designee, is designated as the coordinator to implement the department's policy under this rule, provide necessary training, and collect data concerning the effectiveness of the implemented procedures.

Source Note: The provisions of this §201.7 adopted to be effective October 15, 2012, 37 TexReg 8197