SECTION 854.82. Procedures for Resolution of Manager's Dissatisfaction

(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.

(B) In lieu either of a recording of the testimony electronically or of the reporting of testimony by a court reporter, the parties to a hearing may agree upon a statement of the evidence to use transcription as a statement of the testimonial evidence, or agree to the summarization of testimony before the hearing officer, provided, however, that proceedings or any part of them must be transcribed on written request of any party.

(C) Unless otherwise provided in this subchapter, the party requesting a transcription of any electronic recording of the proceedings shall bear the cost for transcribing the testimony. Nothing provided for in this section limits the Agency to an electronic record of the proceedings.

(D) The record of the proceedings, including exhibits and any transcription, shall be made available to the parties by the Agency no later than the 30th business day after the close of the hearing.

(13) The hearing officer shall issue a recommendation that shall set forth the principal issues and relevant facts that were stated at the hearing and the applicable provisions of law, rule, the requirements of the BET manual, or any instruction by Agency personnel. The recommendation shall contain findings of fact and conclusions with respect to each of the issues, and the reasons and bases for the conclusions.

(14) In formulating a recommendation, the hearing officer shall not evaluate whether the Agency's actions were wise, efficient, or effective. Rather, the hearing officer is limited to determining whether the Agency's actions were unreasonable, or if they violated applicable law, this subchapter, the requirements of the BET manual, or any instruction by Agency personnel.

(15) If the hearing officer finds that the actions taken by the Agency were unreasonable or violated applicable law, this subchapter, the requirements of the BET manual, or any instruction by Agency personnel, the hearing officer shall also recommend any prospective action necessary to correct the violations.

(16) The hearing officer's recommendation shall be made no later than the 30th business day after the receipt of the official transcript. The recommendation shall be delivered promptly to the VRD director.

(17) The VRD director shall review the recommendation of the hearing officer and forward a decision to the manager no later than the 20th business day after receipt of the hearing officer's recommendation. The VRD director's decision shall include findings of fact and conclusions of law based on the evidence in the record and separately stated.

(18) Subject to the provisions of Texas Government Code, §2001.144 and §2001.146, the VRD director's decision shall be the final decision of the Agency. Any such decision becomes the final decision of the Agency if a timely motion for rehearing or reconsideration is not filed.

(f) Arbitration. A manager appealing the Agency's decision must file a complaint with the US Secretary of Education in conformity with the provisions of the implementing regulations at 34 CFR §395.13 of the Act, pertaining to arbitration of vendor complaints.

Source Note: The provisions of this §854.82 adopted to be effective September 1, 2019, 44 TexReg 3294; amended to be effective July 4, 2022, 47 TexReg 3823