TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 5. PROVIDER CLINICAL RESPONSIBILITIES--INTELLECTUAL DISABILITY SERVICES

SUBCHAPTER C. USE AND MAINTENANCE OF DRUG FORMULARY

40 TAC §§5.101 - 5.114

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §5.101, concerning Purpose; §5.102, concerning Application; §5.103, concerning Definitions; §5.104, concerning General Requirements; §5.105, concerning Organization of TDMHMR Drug Formulary; §5.106, concerning Executive Formulary Committee; §5.107, concerning Responsibilities of the Executive Formulary Committee; §5.108, concerning Applying to Have a Drug Added to the Formulary; §5.109, concerning Changing the TDMHMR Drug Formulary; §5.110, concerning Prescribing Non-formulary Drugs; §5.111, concerning Adverse Drug Reactions; §5.112, concerning Exhibit; §5.113, concerning References; and §5.114, concerning Distribution.

BACKGROUND AND PURPOSE

The proposed repeals are necessary to reflect the transition of programs from the Department of Aging and Disability Services to HHSC. Rules in Texas Administrative Code (TAC) Title 40, Part 1, Chapter 5, Subchapter C are repealed, updated, reorganized, and proposed in 26 TAC Chapter 306, Subchapter G. The new rules are proposed simultaneously elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION

The proposed rule repeals delete the rules in 40 TAC Chapter 5, Subchapter C, to reorganize and update the rules to be relocated to 26 TAC Chapter 306, Subchapter G.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the repeals will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules are repealed:

(1) the proposed repeals will not create or eliminate a government program;

(2) implementation of the proposed repeals will not affect the number of HHSC employee positions;

(3) implementation of the proposed repeals will result in no assumed change in future legislative appropriations;

(4) the proposed repeals will not affect fees paid to HHSC;

(5) the proposed repeals will not create a new rule;

(6) the proposed repeals will repeal existing rules;

(7) the proposed repeals will not change the number of individuals subject to the rules; and

(8) the proposed repeals will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.

The proposed repeals do not impose any additional costs on small businesses, micro-businesses, or rural communities.

LOCAL EMPLOYMENT IMPACT

The proposed repeals will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these repeals because the repeals do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Timothy E. Bray, Associate Commissioner of State Hospitals, and Scott Schalchlin, Associate Commission of State Supported Living Centers, have determined that for each year of the first five years the repeals are in effect, the public will benefit from elimination of rules that refer to an agency that no longer exists.

Trey Wood has also determined that for the first five years the repeals are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to HHSC, Health and Specialty Care System, Mail Code 619E, P.O. Box 13247, Austin, Texas 78711-3247, or by email to healthandspecialtycare@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rules 19R052 Drug Formulary" in the subject line.

STATUTORY AUTHORITY

The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §591.004 which provides that the Executive Commissioner of HHSC shall adopt rules to implement the Persons with an Intellectual Disability Act; and §533A.0355 which provides that the Executive Commissioner of HHSC shall adopt rules establishing the roles and responsibilities of local intellectual and developmental disability authorities.

The repeals implement Texas Government Code §531.0055 and Texas Health and Safety Code §591.004 and §533A.0355.

§5.101.Purpose.

§5.102.Application.

§5.103.Definitions.

§5.104.General Requirements.

§5.105.Organization of TDMHMR Drug Formulary.

§5.106.Executive Formulary Committee.

§5.107.Responsibilities of the Executive Formulary Committee.

§5.108.Applying to Have a Drug Added to the Formulary.

§5.109.Changing the TDMHMR Drug Formulary.

§5.110.Prescribing Non-formulary Drugs.

§5.111.Adverse Drug Reactions.

§5.112.Exhibit.

§5.113.References.

§5.114.Distribution.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 6, 2020.

TRD-202004159

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 206-5084


PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 800. GENERAL ADMINISTRATION

SUBCHAPTER L. WORKFORCE DIPLOMA PILOT PROGRAM

40 TAC §§800.500 - 800.505

The Texas Workforce Commission (TWC) proposes the following new subchapter to Chapter 800, relating to General Administration:

Subchapter L. Workforce Diploma Pilot Program, §§800.500 - 800.505.

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

Senate Bill (SB) 1055, 86th Texas Legislature, Regular Session (2019), added new Chapter 317 to the Texas Labor Code, requiring TWC, in consultation with the Texas Education Agency (TEA), to create and administer a Workforce Diploma Pilot Program (Program). As outlined in Texas Labor Code, Chapter 317, the Program will allow eligible high school diploma--granting entities to be reimbursed for helping adult students obtain high school diplomas and industry-recognized credentials and develop technical career-readiness and employability skills.

SB 1055 stipulates that Texas Labor Code, Chapter 317 expires on September 1, 2025, and requires TWC to develop rules that:

--outline the application process to become a qualified provider;

--define the minimum performance standards for qualified providers, which include a graduation rate of at least 50 percent and a program cost per graduate of $7,000 or less for the previous calendar year; and

--develop formulas to make the appropriate calculations to determine the graduation rate and program cost per graduate.

SB 1055 includes the stipulation that TWC "is required to implement a provision of this Act only if the legislature appropriates money specifically for that purpose. If the legislature does not appropriate money specifically for that purpose, the Texas Workforce Commission may, but is not required to, implement a provision of this Act using other appropriations available for that purpose." TWC is developing rules to implement the Program upon allocation of funds for its implementation.

New Chapter 800, Subchapter L, Workforce Diploma Pilot Program, provides the rules for implementing new Texas Labor Code, Chapter 317, as added by SB 1055.

On June 23, 2020, TWC's three-member Commission (Commission) approved a policy concept for the required rule development for the Program under Texas Labor Code, Chapter 317. The policy concept included rule language for the Commission's future consideration and was published in the July 3, 2020, issue of the Texas Register (45 TexReg 4574) for a 30-day public comment period. The comment period ended on August 3, 2020, and TWC did not receive any comments. The rule language provided in this proposal reflects the rule language included in the published policy concept, with a few minor changes.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER L. WORKFORCE DIPLOMA PILOT PROGRAM

TWC proposes new Subchapter L:

§800.500. Purpose

New §800.500 provides the purpose of the Program, which is to reimburse qualified providers that provide assistance to adult students to obtain high school diplomas and attain industry-recognized credentials and to develop technical career-readiness and employability skills, to the extent that funding is available for this purpose.

§800.501. Definitions

New §800.501 provides the following definitions for Subchapter L:

--"Academic resiliency" is a student's ability to persist and academically succeed despite adversity.

--"Academic skill intake assessment" is a formal and/or informal assessment used at intake to gather information on a student's current knowledge and skills in specific academic areas (for example, literacy and numeracy). That information is then used to determine the student's appropriate instructional level as well as accommodations and/or remediation that the student needs.

--"Career Pathway" is a combination of rigorous and high-quality education, training, and other services that:

--aligns with the skill needs of industries in the economy of the state or regional economy involved;

--prepares an individual to be successful in any of a full range of secondary or postsecondary education options;

--includes counseling to help an individual achieve his or her education and career goals;

--includes, as appropriate, education offered concurrently with, and in the same context as, workforce preparation activities and training for a specific occupation or occupational cluster;

--organizes education, training, and other services to meet the particular needs of an individual in a manner that accelerates his or her educational and career advancement to the extent practicable;

--enables an individual to attain a secondary school diploma or its recognized equivalent, and at least one recognized postsecondary credential; and

--helps an individual enter or advance within a specific occupation or occupational cluster (29 USC §3102, Definitions).

--"Eligible participant" is an individual who is over the age of compulsory school attendance prescribed by Texas Education Code, §25.085 and who, as required by TWC:

--is a Texas resident;

--lacks a high school diploma;

--is authorized to work in the United States; and

--is able to work immediately upon graduation from the Program.

--"Employability skills certification program" refers to a certification in general skills that are necessary for success in the labor market at all employment levels and in all industry sectors. Employability skills include problem-solving, collaboration, organization, and adaptability.

--"Half credit" is based on the Carnegie Unit, which refers to the standard award of credit given for a course that lasts one semester. When determining credits, qualified providers should consider instructional time plus the amount of time that the student would take to complete the coursework in a high school semester or academic year. In traditional education models, a student typically attends a class for 55 to 60 minutes a day for four or five days a week, in addition to studying independently.

--"High school diploma" is a credential awarded by an entity based on completion of all state graduation requirements as outlined in Texas Education Code, §28.025 and §39.023 and 19 Texas Administrative Code (TAC) Chapter 74, Curriculum Requirements, and Chapter 101, Assessment.

--"Industry-recognized credential" is a state-approved credential that verifies an individual's qualifications and competence and is issued by a third party with the relevant authority to issue such credentials (US Department of Labor, 2010). Industry-recognized credentials offered by qualified providers must align with TWC's mission to target high-growth, high-demand, and emerging occupations that are crucial to state and local workforce economies and must reflect the target occupations for the local workforce development areas (workforce areas) in which services will be provided. Qualified providers may also reference the list of industry-based certifications for public school accountability that TEA publishes.

--"Learning Plan Development" is the process by which an individualized learning plan is developed after student intake; it is maintained through coaching and mentoring.

--"One credit" is based on the Carnegie Unit, which refers to the standard award credit given for a course that lasts a full academic year. When determining credits, qualified providers should consider instructional time plus the amount of time that the student would take to complete the coursework in a high school semester or academic year. In traditional education models, a student typically attends a class for 55 to 60 minutes a day for four or five days a week in addition to studying independently.

--"Program" refers to the Workforce Diploma Pilot Program set forth in Texas Labor Code, Chapter 317.

--"Qualified provider" that may participate in the Program and receive reimbursement is a provider that:

--is a public, nonprofit, or private entity that is:

--authorized under the Texas Education Code or other state law to grant a high school diploma, or

--accredited by a regional accrediting body, as established by the US Secretary of Education pursuant to 20 USCS §1099b, Recognition of Accrediting Agency or Association;

--has at least two years of experience providing dropout reengagement services to adult students, including recruitment, learning plan development, and proactive coaching and mentoring, leading to the obtainment of a high school diploma;

--is equipped to:

--provide:

--academic skill intake assessment and transcript evaluations;

--remediation coursework in literacy and numeracy;

--a research-validated academic resiliency assessment and intervention;

--employability skills development aligned to employer needs;

--career pathways coursework;

--preparation for the attainment of industry-recognized credentials; and

--career placement services; and

--develop a learning plan that integrates academic requirements and career goals; and

--offers a course catalog that includes all courses necessary to meet high school graduation requirements in Texas, as authorized under 19 TAC Chapter 74, Subchapter B, Graduation Requirements.

--"Regional accrediting body" must meet the criteria established by the US Secretary of Education pursuant to 20 USCS §1099b, Recognition of Accrediting Agency or Association, and appear on the US Secretary of Education's list of federally recognized accrediting agencies in the Federal Register as stated in 34 CFR §602.2. A copy of the list may be obtained from the US Department of Education.

§800.502. Request for Qualifications and List of Qualified Providers

New §800.502 describes the Program's Request for Qualifications (RFQ) provisions, as outlined in Texas Labor Code, Chapter 317, to the extent that TWC funding is available.

Texas Labor Code, Chapter 317 requires TWC to publish an RFQ no later than October 15th of each year to identify Program providers. New §800.502 outlines the application process for qualified providers as follows:

TWC will identify qualified providers to participate in the Program through a statewide RFQ process conducted in accordance with state requirements.

Potential providers will apply directly to TWC using the RFQ process, and, once identified as a qualified provider, must meet all deadlines, requirements, and guidelines set forth in the published RFQ.

TWC will publish a list of qualified providers by November 15th of each year to participate in the Program the next calendar year.

Each provider on the qualified provider list will be eligible to receive monthly reimbursements for this Program based on monthly invoices submitted to TWC, as prescribed in the RFQ's terms.

Each year, TWC will review and update the list of qualified providers. Qualified providers that do not meet the minimum performance standards outlined in §800.503 will be placed on probation for the remainder of the calendar year. Failure to meet both minimum performance standards for two consecutive years will result in disqualification from the Program.

TWC's determinations in the RFQ process will be based on the affirmation of the qualified provider to effectively perform all services and activities outlined in Texas Labor Code, Chapter 317.

§800.503. Minimum Performance Standards

As required by Texas Labor Code, Chapter 317, new §800.503 describes the minimum performance standards needed for qualified providers to remain on the qualified provider list.

New §800.503(a) states that the minimum performance standards for the calendar year must include a:

--graduation rate of at least 50 percent; and

--program cost per graduate of $7,000 or less.

New §800.503(b) provides the requirements for TWC actions if a qualified provider fails to maintain minimum performance standards. Section 800.503(b) requires TWC to annually review data from each participating provider to ensure that the services offered by the provider are meeting the minimum performance standards. If TWC determines that a provider did not meet the minimum performance standards in the previous calendar year, TWC shall place the provider on probationary status for the remainder of the current calendar year.

New §800.503(c) requires TWC to remove any provider that does not meet the minimum performance standards for two consecutive calendar years from the published provider list, as authorized by Texas Labor Code, §317.005.

§800.504. Graduation Rate and Graduate Cost Formulas

As required by Texas Labor Code, Chapter 317, new §800.504(a) and (b) describe the formulas for calculating the graduation rate and Program cost per graduate.

Graduation rate is defined as and determined by dividing the number of students who received a high school diploma from the qualified provider by the number of students for whom the qualified provider sought and received reimbursements.

New §800.504(b) provides the Program cost per graduate formula as the product of the number of students who received a high school diploma during the previous calendar year multiplied by $7,000; that product may not exceed the total annual cost (reimbursements paid) to the qualified provider for the total number of services provided.

§800.505. Reimbursement Rates

New §800.505 provides the reimbursement amounts that a qualified provider may receive (to the extent that funding is available). Pursuant to Texas Labor Code, §317.006, those reimbursement rates will be as follows:

--$250 for completion of a half credit

--$250 for completion of an employability skills certification program equal to at least one credit or the equivalent

--$250 for the attainment of an industry-recognized credential requiring not more than 50 hours of training

--$500 for the attainment of an industry-recognized credential requiring at least 50 but not more than 100 hours of training

--$750 for the attainment of an industry-recognized credential requiring more than 100 hours of training

--$1,000 for the obtainment of a high school diploma

Additionally, §800.505 clarifies that a provider may not be reimbursed twice for one attainment of an industry-recognized credential.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code, §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code, §2001.0045, does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the US Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The Commission completed a Takings Impact Analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to outline requirements of the Program under Texas Labor Code, Chapter 317 and

--outline the application process to become a qualified provider;

--describe the minimum performance standards for qualified providers, which include a graduation rate of at least 50 percent and a Program cost per graduate of $7,000 or less for the previous calendar year; and

--develop formulas to make the appropriate calculations to determine graduation rate and program cost per graduate.

The proposed rulemaking action will not create any additional burden on private real property or affect private real property in a manner that would require compensation to private real property owners under the US Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

TWC has determined that during the first five years the rules will be in effect:

--the rules will not create or eliminate a government program;

--implementation of the rules will not require the creation or elimination of employee positions;

--implementation of the rules will not require an increase or decrease in future legislative appropriations to TWC;

--the rules will not require an increase or decrease in fees paid to TWC;

--the rules will not create a new regulation;

--the rules will not expand, limit, or eliminate an existing regulation;

--the rules will not change the number of individuals subject to the rules; and

--the rules will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

TWC has determined that the proposed rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.

Mariana Vega, Director, Labor Market and Career Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Courtney Arbour, Director, Workforce Development Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to provide guidance on implementing a Workforce Diploma Pilot Program in Texas.

TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Local Workforce Development Boards (Boards). TWC provided the policy concept for the new rules to the Boards for consideration and review on June 23, 2020. TWC also conducted a conference call with Board executive directors and Board staff on June 26, 2020, and then on July 2, 2020, with AEL grant recipients to discuss the Policy Concept and comment period.

The policy concept was published in the Texas Register for a 30-day comment period that ended on August 3, 2020. During the proposed rulemaking process, TWC considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.

Comments on the proposed rules may be submitted to TWCPolicyComments@twc.state.tx.us. Comments must be received no later than 30 days from the date this proposal is published in the Texas Register.

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement the requirements of Texas Labor Code, Chapter 317.

§800.500.Purpose.

The purpose of the Workforce Diploma Pilot Program is to reimburse qualified providers that provide assistance to adult students to obtain high school diplomas and attain industry-recognized credentials and to develop technical career readiness and employability skills to the extent that funding is available for this purpose.

§800.501.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Academic resiliency--A student's ability to persist and to academically succeed despite adversity.

(2) Academic skill intake assessment--A formal and/or informal assessment used at intake to gather information on a student's current knowledge and skills in specific academic areas (for example, literacy and numeracy). That information is then used to determine the student's appropriate instructional level as well as accommodations and/or remediation that the student needs.

(3) Career Pathway--A combination of rigorous and high-quality education, training, and other services that:

(A) aligns with the skill needs of industries in the economy of the state or regional economy involved;

(B) prepares an individual to be successful in any of a full range of secondary or postsecondary education options;

(C) includes counseling to support an individual in achieving the individual's education and career goals;

(D) includes, as appropriate, education offered concurrently with, and in the same context as, workforce preparation activities and training for a specific occupation or occupational cluster;

(E) organizes education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable;

(F) enables an individual to attain a secondary school diploma or its recognized equivalent, and at least one recognized postsecondary credential; and

(G) helps an individual enter or advance within a specific occupation or occupational cluster (29 USC §3102, Definitions).

(4) Eligible participant--An individual who is over the age of compulsory school attendance, as prescribed by Texas Education Code, §25.085, and as required by the Agency, must:

(A) be a Texas resident;

(B) lack a high school diploma;

(C) be authorized to work in the United States; and

(D) be able to work immediately upon graduation from the program.

(5) Employability skills certification program--Refers to a certification in general skills that are necessary for success in the labor market at all employment levels and in all industry sectors. Employability skills include problem-solving, collaboration, organization, and adaptability.

(6) Half credit--The standard award of credit given for a course that lasts one semester, and which is based on the Carnegie Unit. When determining credits, qualified providers should consider instructional time plus the amount of time that the student would take to complete the coursework in a high school semester or academic year. In traditional education models, a student typically attends a class for 55 to 60 minutes a day for four or five days a week in addition to studying independently.

(7) High school diploma--A credential awarded by an entity, based on completion of all state graduation requirements as outlined in Texas Education Code, §28.025 and §39.023 and 19 TAC Chapter 74 (relating to Curriculum Requirements) and Chapter 101 (relating to Assessment).

(8) Industry-recognized credential--A state-approved credential verifying an individual's qualifications and competence and is issued by a third party with the relevant authority to issue such credentials (US Department of Labor, 2010). Industry-recognized credentials offered by qualified providers must align with the Agency's mission to target high-growth, high-demand, and emerging occupations that are crucial to the state and local workforce economies, and must reflect the target occupations for the workforce areas in which services will be provided. Qualified providers may also reference the list of industry-based certifications for public school accountability published by the Texas Education Agency.

(9) Learning Plan Development--The process by which an individualized learning plan is developed after student intake; it is maintained through coaching and mentoring.

(10) One credit--The standard award credit given for a course that lasts a full academic year, and which is based on the Carnegie Unit. When determining credits, qualified providers should consider instructional time plus the amount of time that the student would take to complete the coursework in a high school semester or academic year. In traditional education models, a student typically attends a class for 55 to 60 minutes a day for four or five days a week, in addition to studying independently.

(11) Program--Refers to the Workforce Diploma Pilot Program, set forth in Texas Labor Code, Chapter 317.

(12) Qualified provider--A provider that may participate in the Program and receive reimbursement and that:

(A) is a public, nonprofit, or private entity that is:

(i) authorized under the Texas Education Code or other state law to grant a high school diploma; or

(ii) accredited by a regional accrediting body, as established by the US Secretary of Education, pursuant to 20 USCS §1099b, Recognition of Accrediting Agency or Association;

(B) has at least two years of experience providing dropout reengagement services to adult students, including recruitment, learning plan development, and proactive coaching and mentoring, leading to the obtainment of a high school diploma;

(C) is equipped to:

(i) provide:

(I) academic skill intake assessment and transcript evaluations;

(II) remediation coursework in literacy and numeracy;

(III) a research-validated academic resiliency assessment and intervention;

(IV) employability skills development aligned to employer needs;

(V) career pathways coursework;

(VI) preparation for the attainment of industry-recognized credentials; and

(VII) career placement services; and

(ii) develop a learning plan that integrates academic requirements and career goals; and

(D) offers a course catalog that includes all courses necessary to meet high school graduation requirements in Texas, as authorized under 19 TAC Chapter 74, Subchapter B (relating to Graduation Requirements).

(13) Regional accrediting body--Must meet the criteria established by the US Secretary of Education pursuant to 20 USCS §1099b, Recognition of Accrediting Agency or Association, and appear on the US Secretary of Education's list of federally recognized accrediting agencies in the Federal Register, as stated in 34 CFR §602.2. A copy of the list may be obtained from the US Department of Education.

§800.502.Request for Qualifications and List of Qualified Providers.

(a) The Agency will identify qualified providers to participate in the Program through a statewide Request for Qualifications (RFQ) process conducted in accordance with state requirements. The Agency will publish an RFQ no later than October 15th of each year to identify Program providers.

(b) Potential providers will apply directly to the Agency using the RFQ process, and, once identified as a qualified provider, must meet all deadlines, requirements, and guidelines set forth in the published RFQ.

(c) The Agency will publish a list of qualified providers no later than November 15th of each year to participate in the Program the next calendar year.

(d) Each provider on the qualified provider list will be eligible to receive monthly reimbursements for this Program based on monthly invoices submitted to the Agency, as prescribed in the RFQ's terms.

(e) Each year, the Agency shall review and update the list of qualified providers. Qualified providers that do not meet the minimum performance standards outlined in §800.503 of this subchapter will be placed on probation for the remainder of the calendar year. Failure to meet both minimum performance standards for two consecutive years will result in disqualification from the Program.

(f) The Agency's determinations in the RFQ process will be based on the affirmation of the qualified provider to effectively perform all services and activities outlined in Texas Labor Code, Chapter 317.

§800.503.Minimum Performance Standards.

(a) The minimum performance standards for the calendar year must include:

(1) a graduation rate, as defined in §800.504(a) of this subchapter, of at least 50 percent; and

(2) a program cost per graduate of $7,000 or less, as calculated pursuant to §800.504(b) of this subchapter.

(b) Each year, the Agency shall review data from each participating provider to ensure that the services offered by the provider are meeting the minimum performance standards. If the Agency determines that a provider did not meet the minimum performance standards in the previous calendar year, the Agency shall place the provider on probationary status for the remainder of the current calendar year.

(c) The Agency shall remove any provider that does not meet the minimum performance standards for two consecutive calendar years from the provider list published under Texas Labor Code, §317.005.

§800.504.Graduation Rate and Graduate Cost Formulas.

(a) Graduation rate is defined as and determined by dividing the number of students who received a high school diploma from the qualified provider by the number of students for which the qualified provider sought and received reimbursements.

(b) The Program cost per graduate formula is determined as the product of the number of students who received a high school diploma the previous calendar year multiplied by $7,000; the product may not exceed the total annual cost (reimbursements paid) to the qualified provider for the total number of services provided.

§800.505.Reimbursement Rates.

(a) The reimbursement amounts that a qualified provider may receive, to the extent that funding is available, shall be as follows:

(1) $250 for completion of a half credit;

(2) $250 for completion of an employability skills certification program equal to at least one credit or the equivalent;

(3) $250 for the attainment of an industry-recognized credential requiring not more than 50 hours of training;

(4) $500 for the attainment of an industry-recognized credential requiring at least 50 but not more than 100 hours of training;

(5) $750 for the attainment of an industry-recognized credential requiring more than 100 hours of training; and

(6) $1,000 for the obtainment of a high school diploma.

(b) A provider shall not be reimbursed more than one time for one attainment of an industry-recognized credential.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2020.

TRD-202004172

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


CHAPTER 809. CHILD CARE SERVICES

The Texas Workforce Commission (TWC) proposes amendments to the following sections of Chapter 809, relating to Child Care Services:

Subchapter A. General Provisions, §809.2

Subchapter B. General Management, §§809.12, 809.13, 809.16, 809.18, and 809.19

Subchapter E. Requirements to Provide Child Care, §809.91 and §809.93

Subchapter G. Texas Rising Star Program, §§809.130 -809.134

TWC proposes the following new sections to Chapter 809, relating to Child Care Services:

Subchapter B. General Management, §809.22

Subchapter E. Requirements to Provide Child Care, §809.96

Subchapter G. Texas Rising Star Program, §809.136

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

PART III. IMPACT STATEMENTS

PART IV. COORDINATION ACTIVITIES

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of the proposed Chapter 809 rule changes is to implement a contracted slots option for child care services, clarify the allowable uses of Child Care Quality (CCQ) funds, update how the parent co-payment is determined, align the child transfer policy with industry practices, and implement changes to Texas Rising Star policy based on recommendations that arose from the Texas Rising Star four-year review.

House Bill 680

House Bill 680 (HB 680), 86th Texas Legislature, Regular Session (2019), amended the Texas Government Code and the Texas Labor Code regarding TWC's Child Care program. To fully implement HB 680 requirements, Chapter 809 requires amendments to clarify allowable uses of Local Workforce Development Boards' (Boards) CCQ funds to allow Boards to engage in child care provider contract agreements for reserved slots, and to allow direct referrals for eligible children participating in recognized public/private partnerships.

Allowable Uses of Boards' Child Care Quality Funds

HB 680, Section 1 amends Texas Government Code, §2308.317, by adding a new subsection requiring each Board, to the extent practicable, to ensure that any professional development for child care providers, directors, and employees using the Board's allocated quality improvement funds:

--be used toward the requirements for a credential, certification, or degree program; and

--meet the Texas Rising Star program's professional development requirements.

Section 809.16, Quality Improvement Activities, outlines rules related to quality improvement activities that are allowable for Boards. Section 809.16 currently allows Boards to expend quality funds on any quality improvement activity described in 45 Code of Federal Regulations (CFR) Part 98. TWC proposes requiring Boards to align expenditures for child care professional development with applicable state statute and the activities described in the Child Care Development Fund (CCDF) State Plan.

Child Care Provider Contract Agreements

HB 680, Section 5 adds Texas Labor Code, §302.0461, Child Care Provider Contract Agreements, allowing Boards to contract with child care providers to provide subsidized child care. This is congruent with §658E(c)(2)(A) of the Child Care and Development Block Grant (CCDBG) Act of 2014, which authorizes states to offer financial assistance for child care services through grants and contracts. Specific guidance from the US Department of Health and Human Services' Office of Child Care confirms that:

"States can award grants and contracts to providers in order to provide financial incentives to offer care for special populations, require higher quality standards, and guarantee certain numbers of slots to be available for low-income children eligible for Child Care and Development Fund (CCDF) financial assistance. Grants and contracts can provide financial stability for child care providers by paying in regular installments, paying based on maintenance of enrollment, or paying prospectively rather than on a reimbursement basis."

HB 680 requires that any such contract includes the number of slots reserved by a provider for children who participate in the subsidized child care program.

To be eligible for a contract, HB 680 requires that a child care provider be a Texas Rising Star 3- or 4-star provider and meet one of the following priorities:

--Be located in an area:

-where the number of children under age six with working parents is at least three times greater than the capacity of licensed child care providers in the area; or

-determined by TWC to be underserved with respect to child care providers

--Have a partnership with local school districts to provide prekindergarten (pre-K)

--Have a partnership with Early Head Start (EHS) or Head Start (HS)

--Have an increased number of places reserved for infants and toddlers by high-quality child care providers

--Satisfy a priority identified in the Board's plan

HB 680 also requires that Boards choosing to contract with providers submit a report to TWC no later than six months after entering into the contract, and every six months thereafter, determining the contract's effect on the following:

--Financial stability of providers participating in the contract

--Availability of high-quality child care options for participants in TWC's subsidy program

--Number of high-quality providers in any part of the local workforce development area (workforce area) with a high concentration of families with a need for child care

--Percentage of children participating in TWC's subsidized child care program at each Texas Rising Star provider in the Board's workforce area

In December 2019, TWC's Child Care & Early Learning Division assembled a workgroup consisting of TWC staff, Board staff, and Board child care services contractor staff to discuss implementation recommendations related to contracted slots. Recommendations from the contracted slots workgroup informed the revisions described.

Reserved Slots

Currently, §809.93(g) prohibits a Board or its child care contractor from paying providers for holding spaces (slots) open. However, if a Board chooses to contract with child care providers for a specific number of spaces, also known as a Contracted Slots model, the Board would continue payment for reserved slots during the transition time between one child leaving and another child being placed in the slot. TWC proposes allowing transition times to hold slots open for another child participating in the subsidy program and requiring the slots to be filled one month following the month of the vacancy. Adding new §809.96 to define the child care provider contract agreement rules and requirements will clarify the policy and require that Boards choosing to use contracted slots include the program in the Board plan.

Waiting Lists and Priorities

TWC prioritizes services for veterans and foster youth and former foster children in accordance with Texas Labor Code, §302.152 and Texas Family Code, §264.121(a)(3). When providing child care subsidies, Boards are required to prioritize these groups, subject to the availability of funds. Furthermore, §809.18 requires Boards to maintain waiting lists for families that are waiting for child care services. Because HB 680 authorizes Boards to contract with child care providers to reserve a set number of child care slots, the contracted slots workgroup has identified complications with continuing to use the current waiting list system for filling open slots for providers with contracts.

Currently, the Board's waiting list for the subsidy voucher system is for the entire workforce area. Families are contacted in order of priority to select any participating provider in the Board's workforce area. Section 809.43 details the priority groups as follows:

The first priority group is assured child care services and includes children of parents eligible for the following:

--Choices child care

--Temporary Assistance for Needy Families Applicant child care

--Supplemental Nutrition Assistance Program Employment and Training child care

--Transitional child care

The second priority group is served subject to the availability of funds and includes the following, in the order of priority:

1. Children requiring protective services child care

2. Children of a qualified veteran or qualified spouse

3. Children of a foster youth

4. Children experiencing homelessness

5. Children of parents on military deployment whose parents are unable to enroll in military-funded child care assistance programs

6. Children of teen parents

7. Children with disabilities

The third priority group includes any other priority adopted by the Board.

With a Contracted Slots model, the slots need to be filled quickly to avoid Boards paying for vacant reserved slots. TWC proposes allowing families to indicate ZIP code preferences for location of child care and prioritizing children with preferences matching ZIP codes with an available contracted slot.

Eligible Geographic Locations

One of the qualifying priorities identified in HB 680 to allow contracted slots is that the child care provider be located in an area of high need and low capacity, that is, an area:

--where the number of children under age six with working parents is at least three times greater than the capacity of licensed child care providers in the area; or

--that TWC has determined to be "underserved with respect to child care providers."

TWC proposes using data from the state demographer to analyze and publish annual information about geographic areas that meet the requirements described in HB 680 and requiring Boards to use this data to identify providers that are in areas of high need and low capacity.

Direct Referrals from Public Prekindergarten and Head Start/Early Head Start Partnerships

HB 680 explicitly authorizes contracts for Texas Rising Star providers engaged in partnerships with public pre-K or HS/EHS. Additionally, HB 3, 86th Texas Legislature, Regular Session (2019), supports expansion of pre-K partnerships.

Children served through these partnerships are dually enrolled in both early childhood programs. When a child is dually enrolled in child care services and either public pre-K or HS/EHS, part of the cost to CCDF is offset. Through these partnerships, eligible children can receive the full-day, full-year care that working parents require at a lower cost to the Child Care Services program.

Eligible children served through these partnerships receive early care and education from multiple funding sources. However, each funding source prioritizes certain populations slightly differently (such as a low-income individual, a foster child or child of a foster youth, a veteran or active duty service member, a child with a disability, or a child experiencing homelessness).

These variations can lead to mismatches of when a child is able to access services despite being simultaneously eligible for both programs in a partnership. Operationally, not being able to combine funding for dually eligible children can impact the enrollment efficiency and financial stability of the partnership and limits TWC's ability to implement the contracted slots agreements provisions of HB 680 and to support the pre-K partnership provisions of HB 3.

Chapter 809 does not currently allow for a separate path for enrolling eligible children who are directly referred from a partnering program. Because of this structure, eligible children from partnering programs must be placed on a Board's waiting list despite the federal, state, and local policies that support partnerships and dual enrollment.

TWC proposes creating a separate path for enrollment to support more stable partnerships, maximize available funding to serve more children, and provide improved customer service to participating families.

With a separate enrollment path for partnership direct referrals, services for eligible children who are in TWC's second or third priority group, as defined in §809.43, Priority for Child Care Services, would still be served subject to the availability of funding. Additionally, if the number of referrals from a partnership exceeds the subsidized spots available at a single partnership site, §809.43 would be applied, and any children who did not receive subsidized care through the referring partnership would be placed on the Board's waiting list.

Parent Share of Cost for Part-Time Referrals

A technical change is needed related to how the parent co-payment is determined. Families participating in child care subsidies are responsible for a co-payment, known in Texas as the "parent share of cost," that covers a portion of their child's care and education. Boards assess the parent share of cost on a sliding-fee scale based on income, family size, and other appropriate factors to ensure that the cost is affordable and is not a barrier to families receiving services.

The CCDBG Act of 2014 led to significant changes in the administration of child care services in Texas. In September 2016, TWC adopted amendments to Chapter 809 to align with the new federal requirements and §809.19, Assessing the Parent Share of Cost, was affected. In compliance with federal requirements and guidance, TWC amended §809.19 to limit the basis of the sliding-fee scale to family size and income, including the number of children in care.

With this rule change, Boards were no longer able to offer "discounts" for part-time care, as doing so could have been perceived as using the cost of care or amount of subsidy payment to determine parent share of cost.

The CCDF State Plan template for Federal Fiscal Years 2019 - 2021 (released after the final federal rule) allows the number of hours the child is in care, in addition to the family's income and size, to be considered when determining parent share of cost.

TWC proposes reducing the financial burden on families that need part-time child care by authorizing Boards to assess the parent share of cost at the full-time rate and allow reductions for families with part-time referrals. If a child's referral changes from part-time to full-time care, the family will no longer qualify for the reduction and must revert to the original parent share of cost assessment amount.

Child Transfer Policies

The CCDBG Act includes provisions to ensure equal access to child care for families receiving subsidies, as compared to families that do not receive subsidies. To support equal access, the final federal rule, 45 CFR §98.45(3), requires states to ensure that payments for subsidized child care "reflect generally accepted payment practices of child care providers that serve children who do not receive CCDF subsidies." Additionally, 45 CFR §98.45(5) requires states to ensure that child care providers receive prompt notice of changes to a family's status, which may impact payment.

Providers commonly have policies for private-pay families that require families to give notice before withdrawing their child from the program. Typically, these policies range from two weeks to a full month. These waiting periods help providers to manage their enrollment efficiently and ensure that they have adequate time to fill empty spots.

Section 809.13(c)(10) requires Boards to establish a policy for transfer of a child from one provider to another. However, the rule does not require Boards to establish a waiting period for families that request to transfer a child.

TWC proposes requiring Boards to institute a waiting period as part of their transfer policy to support better alignment with CCDBG and greater stability for subsidy providers.

Texas Rising Star Four-Year Review Recommendations

Texas Government Code, §2308.3155(b)(2) requires TWC to adopt a timeline and a process for regularly reviewing and updating the Texas Rising Star quality standards. The statute also requires TWC's consideration of input from interested parties regarding the quality standards.

To meet this requirement, on February 23, 2016, TWC's three-member Commission (Commission) adopted §809.130(e)(1), which requires staff to facilitate a review of the Texas Rising Star guidelines every four years.

Beginning in May 2019, TWC convened a workgroup to review the Texas Rising Star guidelines and recommend revisions. The workgroup included early learning program directors from around the state, early childhood advocacy organization representatives, professional development providers, Board staff, and representatives from TWC, the Texas Education Agency, the Texas Health and Human Services Commission's (HHSC) Child Care Regulation Division (formerly Child Care Licensing (CCL)), and the State Center for Early Childhood, Children's Learning Institute (CLI).

Over an eight-month period, the workgroup met regularly to review the Texas Rising Star guidelines in detail and to engage in a collaborative effort to improve guidelines' standards. On January 21, 2020, the Commission approved the publication of the workgroup's recommendations for public comment. During February 2020, TWC partnered with Boards to host seven public stakeholder meetings across the state. Throughout the review process, TWC also provided the public with a website to view materials related to the review and a dedicated email address to offer input.

The revisions in this proposed rule consider the recommendations of the workgroup as well as stakeholder input received during public meetings or provided to TWC in writing.

Workforce Registry

The Texas Early Childhood Professional Development System (TECPDS) includes the Workforce Registry (WFR), a web-based system for early childhood professionals to track their experience, education, and training. The WFR offers benefits to programs and teachers by streamlining record-keeping of staff qualifications and professional development. The WFR:

--reduces reliance on paper files and ensures reliable access to an employee's professional development records;

--allows teachers to easily share their training records and to see a holistic view of their portfolio of training and education;

--reduces administrative costs and simplifies processes for directors and owners;

--facilitates validation of compliance with CCL standards and documentation of Texas Rising Star points; and

--allows for more efficient and strategic professional development planning.

TWC proposes integrating the WFR into Texas Rising Star, requiring programs applying for certification to agree to participate in the WFR and encourage their staff to participate as well. For all programs, adopting and maintaining use of the WFR will be included in ongoing technical assistance and Continuous Quality Improvement Plans (CQIPs).

During public stakeholder meetings, many child care providers expressed concerns that the WFR could allow competitors to "steal" staff. TWC notes that the WFR does not have a searchable database of teachers or their qualifications. A teacher's record is only available to others when the teacher actively makes it available to a specified provider--typically the teacher's current employer. Additionally, based on comments received, TWC requested that the WFR be modified to no longer include job postings. This functionality is duplicative of the TWC-funded WorkInTexas.com online job-matching portal.

Creating a Pre-Star Provider Designation

TWC proposes a new Pre-Star provider definition in §809.2(18), and a requirement that all CCL-regulated subsidy providers be designated as Pre-Star in §809.91(a)(1). Pre-Star designations are outside of the statutorily defined Texas Rising Star quality-based rating system set forth in Texas Government Code, §2308.3155 and will not receive an enhanced reimbursement rate. Programs wishing to enter the Texas Rising Star system and apply for star-level certification must first meet Pre-Star designation. Pre-Star designations are based upon a child care program's demonstration that they do not have significant licensing findings, as set forth in the Screening Criteria for Subsidized Child Care and defined in the CCDF State Plan.

Continuous Quality Improvement Framework

Another recommendation from the Texas Rising Star four-year review was that TWC develop a framework for CQIPs and require certified programs to engage in a formal CQIP process.

Early childhood programs and their mentors use CQIPs to identify areas for program and staff improvement. The Texas Rising Star CQIP framework will provide targeted technical assistance and customized coaching to set specific improvement goals and monitor progress.

New Training and Certification Requirements for Texas Rising Star Staff

TWC currently defines requirements for educational background, work experience, and minimum annual training hours for Texas Rising Star mentors and assessors. However, there are no uniform training requirements for mentors or assessors to learn the standards, how to consistently measure them, or how to coach programs to improve.

The four-year review recommendations include new requirements for Texas Rising Star assessor and mentor training and certification to ensure valid and consistent star-level certifications across all Texas Rising Star programs and to improve mentoring and coaching to support the CQIP framework.

Based on these recommendations, TWC proposes that assessors be required to take the Texas Rising Star standards training and to obtain the Texas Rising Star Assessment Certification. Additionally, TWC proposes that assessors be required to pass quarterly reliability checks.

TWC also proposes more robust training requirements for mentors. Increasing the number of programs that attain and retain higher levels of quality will require strong mentoring support, and successful implementation of a CQIP framework will depend on skillful coaching from Texas Rising Star mentors. Specifically, TWC proposes requiring mentors to take the Texas Rising Star standards training and to participate in competency-based professional development designed to improve coaching practices.

Streamlining and Reweighting Categories of Texas Rising Star Measures

Section 809.130 defines the five categories of Texas Rising Star measures defined by previous Texas Rising Star guidelines development efforts. Texas Rising Star categories currently are: (1) Director and Staff Qualifications and Training, (2) Caregiver-Child Interactions, (3) Curriculum, (4) Nutrition and Indoor and Outdoor Activities, and (5) Parent Involvement and Education.

Many of the current measures are repetitive across categories or not well-correlated to the category being measured. TWC proposes reorganizing measures under the following four categories: (1) Director and Staff Qualifications and Training, (2) Teacher-Child Interactions, (3) Program Administration, and (4) Indoor/Outdoor Environments.

TWC also proposes changing the relative weight of each category in recognition of the categories that are most closely correlated with child outcomes. The workgroup specifically recognized the importance of teacher-child interactions in child development, also noting that the TWC-funded "Strengthening Texas Rising Star Implementation Study" established validity and reliability for measures within this category. TWC proposes that the teacher-child interactions category be assigned a weight of 40 percent, with the remaining three categories weighted at 20 percent each.

Impact of Certain Deficiencies on Texas Rising Star Certification

Section 809.132 defines the impact of certain child care licensing deficiencies on programs' Texas Rising Star certification status. Certain deficiencies or accumulation of total deficiencies may result in a decrease in star level or loss of certification. Because enhanced reimbursement rates are tied to star-level certification, the result can be a significant reduction in reimbursements for affected programs.

Stakeholders, including early learning program directors, have observed that financial instability is a barrier to maintaining and increasing quality. The workgroup recommended providing Texas Rising Star programs that receive certain licensing deficiencies with an opportunity to remedy those deficiencies within a six-month probationary period. The workgroup also recommended increasing technical assistance for programs at risk of losing or dropping their Texas Rising Star certification level. Stakeholders that commented on the revisions strongly supported these recommendations.

A review of Texas Rising Star data from 2017 to 2019 showed that almost half of the 300 programs that lost a star level or dropped out of Texas Rising Star did so due to licensing deficiencies. Eighty percent of star-level drops were due to licensing deficiencies, and of those programs that lost their Texas Rising Star certification completely, 54 percent became disqualified for certification due to licensing deficiencies.

TWC proposes a revised structure for considering licensing deficiencies for both new Texas Rising Star applicants and existing certified programs. The revised structure will continue to provide a high level of accountability for the most critical licensing issues, but will also provide opportunities for providers to correct issues that are less correlated with the quality of care children receive.

Minimum Eligibility Requirements for Providers Serving CCDF Subsidized Children

Under federal regulations 45 CFR §98.30(g) regarding Parental Choice, the Administration for Children and Families explicitly allows states to establish policies that requires subsidy providers to meet higher standards of quality, as long as those requirements do not effectively limit parental choice. TWC proposes a new Pre-Star provider designation, indicating those child care programs that demonstrate that they do not have significant licensing findings. Pre-Star designations are outside of the statutorily defined Texas Rising Star quality-based rating system and will not receive an enhanced reimbursement rate. As previously described, programs that meet the criteria for Pre-Star, and would like to enter the Texas Rising Star quality rating improvement system, are eligible to apply for star-level certification.

The Pre-Star designation reviews a provider's licensing findings, as is currently done through the Texas Rising Star Screening Form that is included in the Texas Rising Star guidelines. The new Screening Criteria for Subsidized Child Care criteria have been adapted and included in a proposed amendment of the CCDF State Plan, which is available for public comment in conjunction with these proposed rules (see meeting materials for October 6, 2020 Commission Meeting). Additionally, based on feedback from the four-year review, the total number of licensing deficiencies allowed has increased from 10 to 15.

TWC will establish a five-year timeline for all subsidy providers to achieve at least a Pre-Star designation. TWC will develop a plan to roll out this requirement across the state and will codify the details of this plan in the CCDF State Plan. TWC's rollout plan will consider potential supply challenges, such as those in rural areas of the state which face a potential shortage of child care providers.

During regional stakeholder meetings, many commenters supported this strategy as an effort to ensure that public funds are being invested in child care programs that do not have significant issues with basic licensing requirements and to create a framework for placing these programs on a path to higher quality. At the same time, a few stakeholders also expressed concerns regarding the cost of administering a new Pre-Star designation. TWC notes that the Pre-Star designation may be determined through an automated process that reviews a program's licensing history, as published by Child Care Regulation, and automatically makes the determination of whether a provider may be designated as Pre-Star. Therefore, this proposed change does not require a significant investment of staff resources. Additionally, TWC is also considering the implementation of a continuous quality improvement framework to enhance mentoring and coaching; these resources would be available to Pre-Star programs that would like to enter the state's quality rating improvement system and apply for star-level certification.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER A. GENERAL PROVISIONS

TWC proposes the following amendments to Subchapter A:

§809.2. Definitions

Section 809.2 is amended to add a definition for "Pre-Star provider."

SUBCHAPTER B. GENERAL MANAGEMENT

TWC proposes the following amendments to Subchapter B:

§809.12. Board Plan for Child Care Services (Includes New Regulations)

Section 809.12 is amended to require Boards to include their strategies to use contracted slots agreements, if applicable, in their plans.

§809.13. Board Policies for Child Care Services (Includes New Regulations)

Section 809.13 is amended to require Boards to develop:

--a two-week waiting period policy for a child to transfer to a new provider;

--policies and procedures for contracted slots agreements, if applicable; and

--policies supporting direct referrals from recognized pre-K or HS/EHS partnerships.

§809.16. Quality Improvement Activities

Section 809.16 is amended to allow Boards to expend child care funds on any quality improvement activity described in applicable state laws and the CCDF State Plan.

§809.18. Maintenance of a Waiting List

Section 809.18 is amended to add an allowable exemption from the waiting list for children who are referred directly from a recognized pre-K or HS/EHS partnership to a child care provider to receive services in the contracted partnership program.

§809.19. Assessing the Parent Share of Cost

Section 809.19 is amended to allow Boards to implement a policy to reduce the parent share of cost amount assessed pursuant to §809.19(a)(1)(B) upon the child's referral for part-time care.

§809.22. Partnership Direct Referrals (New Regulation)

New §809.22 adds a requirement for Boards to establish policies and procedures to enroll eligible children who are directly referred by recognized pre-K or HS/EHS partnerships and exempting these children from the waiting list.

SUBCHAPTER E. REQUIREMENTS TO PROVIDE CHILD CARE

TWC proposes the following amendments to Subchapter E:

§809.91. Minimum Requirements for Providers (Includes New Regulations)

Section 809.91(a)(1) is amended to reference new subsection (g), which requires that all CCL-regulated child care providers be designated as Pre-Star based upon meeting TWC's Screening Criteria for Subsidized Child Care. The Screening Criteria for Subsidized Child Care is proposed for removal in §809.131(a) and (b) as a Texas Rising Star eligibility requirement.

Section 809.91 is also amended to add new subsection (h) to provide additional details regarding Pre-Star designations. The Screening Criteria for Subsidized Child Care will be defined in the CCDF State Plan, as will a statewide rollout plan. TWC will carefully consider how to implement the new requirement for all subsidy providers to be Pre-Star designated to ensure that parent choice is not impacted. TWC plans to roll out this requirement over a five-year period; this is intended to provide child care programs with ample time to ensure that they can attain Pre-Star designation. The new Screening Criteria for Subsidized Child Care criteria are included in a proposed amendment of the CCDF State Plan, which is available for public comment in conjunction with these proposed rules (see meeting materials for October 6, 2020 Commission meeting). The rollout plan will be developed as a future State Plan Amendment.

§809.93. Provider Reimbursement

Section 809.93 is amended to add the option for Boards to pay child care providers for holding spaces open if they have a valid contracted slots agreement.

§809.96. Contracted Slots Agreements (New Regulation)

New §809.96 adds detailed requirements for Boards that use contracted slots agreements.

SUBCHAPTER G. TEXAS RISING STAR PROGRAM

TWC proposes the following amendments to Subchapter G:

§809.130. Short Title and Purpose

Section 809.130(d)(1) is amended to denote that Texas Rising Star measures align with the following four categories:

--Director and Staff Qualifications and Training

--Teacher-Child Interactions

--Program Administration

--Indoor/Outdoor Environments

§809.131. Eligibility for the Texas Rising Star Program (Includes New Regulations)

Section 809.131 is amended to remove §809.131(b), as all CCL-regulated subsidy providers will now be required to be designated as Pre-Star under proposed §809.91(a)(1). Additionally, §809.131 is amended to require Texas Rising Star applicants to agree to participate in the WFR and to encourage staff to create accounts within the WFR.

§809.132. Impact of Certain Deficiencies on Texas Rising Star Certification (Includes New Regulations)

Section 809.132 is amended to add compliance requirements for current Texas Rising Star providers and amends the consequences of certain child care licensing deficiencies for certified Texas Rising Star programs and applicants.

§809.133. Application and Assessments for the Texas Rising Star Program (Includes New Regulations)

Section 809.133 is amended to require all programs to participate in the creation of an online-generated CQIP that focuses on growth and evolving adherence to higher-quality standards and to require Boards to ensure that CQIPs are implemented and supported as described in the Texas Rising Star guidelines.

§809.134. Minimum Qualifications for Texas Rising Star Staff (Includes New Regulations)

Section 809.134 is amended to require all Texas Rising Star staff to complete the Texas Rising Star standards training, require Texas Rising Star assessors to attain and maintain the Texas Rising Star Assessor Certification, and require Texas Rising Star mentors to pursue the coaching micro-credential through the attainment of competency badges over a time period defined by TWC.

Section 809.134 is also amended to move §809.134(d) and (e) to new §809.136.

§809.136. Roles and Responsibilities of Texas Rising Star Staff

New §809.136 defines the separate roles and responsibilities of Texas Rising Star assessors and mentors, including separation of roles; cross-functional collaboration and coordination; and mandated reporting requirements related to observed licensing violations.

New §809.136(4) and (5) clarify the separation of roles and professional development of Texas Rising Star staff.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code, §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code, §2001.0045, does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the US Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The Commission completed a Takings Impact Analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to implement a contracted slots option for child care services, update the allowable uses of CCQ funds, update how the parent co-payment is calculated, update the child transfer policy, and implement changes to Texas Rising Star policy as recommended by the Texas Rising Star four-year review.

The proposed rulemaking action will not create any additional burden on private real property. The proposed rulemaking action will not affect private real property in a manner that would require compensation to private real property owners under the US Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

TWC has determined that during the first five years the amendments will be in effect:

--the amendments will not create or eliminate a government program;

--implementation of the amendments will not require the creation or elimination of employee positions;

--implementation of the amendments will not require an increase or decrease in future legislative appropriations to TWC;

--the amendments will not require an increase or decrease in fees paid to TWC;

--the amendments will create new regulations;

--the amendments will expand existing regulations;

--the amendments will not limit or eliminate an existing regulation;

--the amendments will not change the number of individuals subject to the rules; and

--the amendments will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

TWC has determined that the proposed rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.

Mariana Vega, Director, Labor Market and Career Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Reagan Miller, Director, Child Care & Early Learning, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be to increase access to high quality child care for Texans.

TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Boards. TWC provided the policy concept regarding these rule amendments to the Boards for consideration and review on June 23, 2020, for the policy concept relating to contracted slots; July 14, 2020, for the policy concept relating to Texas Rising Star; and July 21, 2020, for the policy concept relating to child transfers. TWC also conducted conference calls to discuss the policy concepts with Board executive directors and Board staff: on June 19, 2020, for the policy concept relating to contracted slots; and July 17, 2020, for the policy concepts relating to Texas Rising Star and child transfers. During the rulemaking process, TWC considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §809.2

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement changes made to Texas Labor Code Chapter 302 and Texas Government Code, Chapter 2308, in a manner that comports with the existing requirements of 45 CFR Part 98.

§809.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Attending a job training or educational program--An individual is attending a job training or educational program if the individual:

(A) is considered by the program to be officially enrolled;

(B) meets all attendance requirements established by the program; and

(C) is making progress toward successful completion of the program as determined by the Board upon eligibility redetermination as described in §809.42(b) of this chapter.

(2) Child--An individual who meets the general eligibility requirements contained in this chapter for receiving child care services.

(3) Child care contractor--The entity or entities under contract with the Board to manage child care services. This includes contractors involved in determining eligibility for child care services, contractors involved in the billing and reimbursement process related to child care subsidies, as well as contractors involved in the funding of quality improvement activities as described in §809.16 of this chapter.

(4) Child Care Licensing (CCL)--Division responsible for protecting the health, safety, and well-being of children who attend or reside in regulated child care facilities and homes. Previously a division of the Texas Department of Family and Protective Services (DFPS), CCL is now part of the Texas Health and Human Services Commission (HHSC).

(5) Child care services--Child care subsidies and quality improvement activities funded by the Commission.

(6) Child care subsidies--Commission-funded child care reimbursements to an eligible child care provider for the direct care of an eligible child.

(7) Child experiencing homelessness--A child who is homeless, as defined in the McKinney-Vento Act (42 USC 11434(a)), Subtitle VII-B, §725.

(8) Child with disabilities--A child who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities include, but are not limited to, caring for oneself; performing manual tasks; walking; hearing; seeing, speaking, or breathing; learning; and working.

(9) Educational program--A program that leads to:

(A) a high school diploma;

(B) a Certificate of High School Equivalency; or

(C) a postsecondary degree from an institution of higher education.

(10) Excessive unexplained absences--More than 40 unexplained absences within a 12-month eligibility period as described in §809.78(a)(3) of this chapter.

(11) Family--Two or more individuals related by blood, marriage, or decree of court, who are living in a single residence and are included in one or more of the following categories:

(A) two [Two] individuals, married--including by common-law, and household dependents; or

(B) a [A] parent and household dependents.

(12) Household dependent--An individual living in the household who is [one of the following]:

(A) an [An] adult considered a dependent of the parent for income tax purposes;

(B) a [A] child of a teen parent; or

(C) a [A] child or other minor living in the household who is the responsibility of the parent.

(13) Improper payments--Any payment of Child Care Development Fund (CCDF) [CCDF] grant funds that should not have been made or that was made in an incorrect amount (including overpayments and underpayments) under statutory, contractual, administrative, or other legally applicable requirements governing the administration of CCDF grant funds and includes payments:

(A) to an ineligible recipient;

(B) for an ineligible service;

(C) for any duplicate payment; and

(D) for services not received.

(14) Job training program--A program that provides training or instruction leading to:

(A) basic literacy;

(B) English proficiency;

(C) an occupational or professional certification or license; or

(D) the acquisition of technical skills, knowledge, and abilities specific to an occupation.

(15) Listed family home--A family home, other than the eligible child's own residence, that is listed, but not licensed or registered with, CCL pursuant to Texas Human Resources Code, §42.052(c).

(16) Military deployment--The temporary duty assignment away from the permanent military installation or place of residence for reserve components of the single military parent or the dual military parents. This includes deployed parents in the regular military, military reserves, or National Guard.

(17) Parent--An individual who is responsible for the care and supervision of a child and is identified as the child's natural parent, adoptive parent, stepparent, legal guardian, or person standing in loco parentis (as determined in accordance with Commission policies and procedures). Unless otherwise indicated, the term applies to a single parent or both parents.

(18) Pre-Star provider--A designation for subsidy providers licensed or registered by CCL, based on meeting the Screening Criteria for Subsidized Child Care, which is further defined in the CCDF State Plan.

(19) [(18)] Protective services--Services provided when:

(A) a child is at risk of abuse or neglect in the immediate or short-term future and the child's family cannot or will not protect the child without DFPS Child Protective Services (CPS) intervention;

(B) a child is in the managing conservatorship of DFPS and residing with a relative or a foster parent; or

(C) a child has been provided with protective services by DFPS within the prior six months and requires services to ensure the stability of the family.

(20) [(19)] Provider--A provider is defined as:

(A) a regulated child care provider as defined in paragraph (21) of this section [§809.2(20)];

(B) a relative child care provider as defined in paragraph (22) of this section [§809.2(21)]; or

(C) a listed family home as defined in paragraph (15) of this section [§809.2(15)], subject to the requirements in §809.91(b) of this chapter.

(21) [(20)] Regulated child care provider--A provider caring for an eligible child in a location other than the eligible child's own residence that is:

(A) licensed by CCL;

(B) registered with CCL; or

(C) operated and monitored by the United States militaryservices.

(22) [(21)] Relative child care provider--An individual who is at least 18 years of age, and is, by marriage, blood relationship, or court decree, the child's [, one of the following]:

(A) [The child's] grandparent;

(B) [The child's] great-grandparent;

(C) [The child's] aunt;

(D) [The child's] uncle; or

(E) [The child's] sibling (if the sibling does not reside in the same household as the eligible child).

(23) [(22)] Residing with--Unless otherwise stipulated in this chapter, a child is considered to be residing with the parent when the child is living with, and physically present with, the parent during the time period for which child care services are being requested or received.

(24) [(23)] Teen parent--A teen parent (teen) is an individual 18 years of age or younger, or 19 years of age and attending high school or the equivalent, who has a child.

(25) [(24)] Texas Rising Star program--A voluntary, quality-based rating system of child care providers participating in Commission-subsidized child care.

(26) [(25)] Texas Rising Star provider [Provider]--A provider certified as meeting the Texas Rising Star [TRS] program standards. Texas Rising Star [TRS] providers are certified as a [one of the following]:

(A) 2-Star Program Provider;

(B) 3-Star Program Provider; or

(C) 4-Star Program Provider.

(27) [(26)] Working--Working is defined as:

(A) activities for which one receives monetary compensation such as a salary, wages, tips, and commissions; or

(B) participation in Choices or Supplemental Nutrition Assistance Program Employment and Training (SNAP E&T) activities.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 9, 2020.

TRD-202004210

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER B. GENERAL MANAGEMENT

40 TAC §§809.12, 809.13, 809.16, 809.18, 809.19, 809.22

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement changes made to Texas Labor Code Chapter 302 and Texas Government Code, Chapter 2308, in a manner that comports with the existing requirements of 45 CFR Part 98.

§809.12.Board Plan for Child Care Services.

(a) A Board shall, as part of its Texas Workforce Development Board Plan (Board plan), develop, amend, and modify the Board plan to incorporate and coordinate the design and management of the delivery of child care services with the delivery of other workforce employment, job training, and educational services identified in Texas Government Code, §2308.304, [§2308.251] et seq., as well as other workforce training and services included in the One-Stop Service Delivery Network.

(b) The goal of the Board plan is to coordinate workforce training and services, to leverage private and public funds at the local level, and to fully integrate child care services for low-income families with the network of workforce training and services under the administration of the Boards.

(c) Boards shall design and manage the Board plan to maximize the delivery and availability of safe and stable child care services that assist families seeking to become independent from, or who are at risk of becoming dependent on, public assistance while parents are either working or attending a job training or an educational program.

(d) A Board shall include in the Board plan any strategies to use contracted slots agreements, as described in §809.96 of this chapter, including any local priorities and how contracted slots agreements will help increase access to high-quality care for targeted communities and population.

§809.13.Board Policies for Child Care Services.

(a) A Board shall develop, adopt, and modify its policies for the design and management of the delivery of child care services in a public process in accordance with Chapter 802 of this title.

(b) A Board shall maintain written copies of the policies that are required by federal and state law, or as requested by the Commission, and make such policies available to the Commission and the public upon request.

(c) At a minimum, a Board shall develop policies related to:

(1) how the Board determines that the parent is making progress toward successful completion of a job training or educational program, as described in §809.2(1) of this chapter;

(2) maintenance of a waiting list, as described in §809.18(b) of this subchapter;

(3) assessment of a parent share of cost, as described in §809.19(a)(1) of this subchapter, including:

(A) provisions for a parent's failure to pay the parent share of cost, including the reimbursement of providers, as a program violation that is subject to early termination of child care services within a 12-month eligibility period; and

(B) criteria for determining the affordability of the parent share of cost, as described in §809.19(d) and [-] (e) of this subchapter;

(4) maximum reimbursement rates, as provided in §809.20 of this subchapter, including policies related to reimbursement of providers that offer transportation;

(5) family income limits, as described in Subchapter C of this chapter (relating to Eligibility for Child Care Services);

(6) provision of child care services to a child with disabilities under the age of 19, as described in §809.41(a)(1)(B) of this chapter;

(7) minimum activity requirements for parents, as described in §809.48 and §809.50 of this chapter;

(8) time limits for the provision of child care while the parent is attending an educational program, as described in §809.41(b) of this chapter;

(9) Board priority groups, as described in §809.43(a) of this chapter;

(10) transfer of a child from one provider to another, as described in §809.71(3) of this chapter, including a waiting period of two weeks before the effective date of a transfer, except in cases in which the provider is subject to a CCL action, as described in §809.94 of this chapter, or on a case-by-case basis by the Board;

(11) providers charging the difference between their published rate and the Board's reimbursement rate as provided in §809.92(d) of this chapter;

(12) procedures for fraud fact-finding as provided in §809.111 of this chapter; [and]

(13) policies and procedures to ensure that appropriate corrective actions are taken against a provider or parent for violations of the automated attendance requirements specified in §809.115(d) and [-] (e) of this chapter;[.]

(14) policies and procedures for contracted slots agreements as described in §809.96 of this chapter, if the Board opts to enter into such agreements; and

(15) supporting direct referrals from recognized pre-K or HS/EHS partnerships, as described in §809.22 of this subchapter.

§809.16.Quality Improvement Activities.

(a) Child care funds allocated by the Commission pursuant to its allocation rules (generally, Chapter 800[, General Administration ], Subchapter B of this title (relating to Allocations) [, Allocation and Funding], and specifically §800.58[,] of this title (relating to Child Care)), including local public transferred funds and local private donated funds, as provided in §809.17 of this subchapter, to the extent they are used for nondirect care quality improvement activities, may be expended on any quality improvement activity described in 45 CFR Part 98, any applicable state laws, and the CCDF State Plan.

(b) Boards must ensure compliance with 45 CFR Part 98 regarding construction expenditures, as follows:

(1) State and local agencies and nonsectarian agencies or organizations.

(A) Funds shall not be expended for the purchase or improvement of land, or for the purchase, construction, or permanent improvement of any building or facility.

(B) Funds may be expended for minor remodeling, and for upgrading child care facilities to ensure that providers meet state and local child care standards, including applicable health and safety requirements.

(2) Sectarian agencies or organizations.

(A) The prohibitions in paragraph (1) of this subsection apply.

(B) Funds may be expended for minor remodeling only if necessary to bring the facility into compliance with the health and safety requirements established pursuant to 45 CFR Part 98.

(c) Expenditures certified by a public entity, as provided in §809.17(b)(3) of this subchapter, may include expenditures for any quality improvement activity described in 45 CFR Part 98.

§809.18.Maintenance of a Waiting List.

(a) A Board shall ensure that a list of parents waiting for child care services, because of the lack of funding or lack of providers, is maintained and available to the Commission upon request.

(b) A Board shall establish a policy for the maintenance of a waiting list that includes, at a minimum:

(1) the process for determining that the parent is potentially eligible for child care services before placing the parent on the waiting list; and

(2) the frequency in which the parent information is updated and maintained on the waiting list.

(c) A Board may exempt children from the waiting list who are directly referred from a recognized pre-K or HS/EHS partnership as described in §809.22 of this subchapter to a child care provider to receive services in the contracted partnership program, which is subject to the availability of funding and the availability of subsidized slots at the partnership site.

§809.19.Assessing the Parent Share of Cost.

(a) For child care funds allocated by the Commission pursuant to its allocation rules (generally, Chapter 800[, General Administration], Subchapter B of this title (relating to Allocations) [, Allocation and Funding], and specifically, §800.58 of this title (relating to[,] Child Care)), including local public transferred funds and local private donated funds, as provided in §809.17 of this subchapter, the following shall apply.

(1) A Board shall set a parent share of cost policy that assesses the parent share of cost in a manner that results in the parent share of cost:

(A) being assessed to all parents, except in instances when an exemption under paragraph (2) of this subsection applies;

(B) being an amount determined by a sliding fee scale based on the family's size and gross monthly income, including a possible reexamination of the sliding fee scale if there are frequent terminations for lack of payment pursuant to subsection (e) of this section, which also may consider the number of children in care;

(C) being an amount that is affordable and does not result in a barrier to families receiving assistance;

(D) being assessed only at the following times:

(i) initial eligibility determination;

(ii) 12-month eligibility redetermination;

(iii) upon the addition of a child in care;

(iv) upon a parent's report of a change in income, family size, or number of children in care that would result in a reduced parent share of cost assessment; and

(v) upon resumption of work, job training, or education activities following temporary changes described in §809.51(a)(2) of this chapter, and upon resumption of work, job training, or education activities during the three-month continuation of care period described in §809.51(c) of this chapter; and

(E) not increasing above the amount assessed at initial eligibility determination or at the 12-month eligibility redetermination based on the factor in subparagraph (B) of this paragraph, except upon the addition of a child in care as described in subparagraph (D)(iii) [subsection (a)(1)(C)(iii)] of this paragraph [section].

(2) Parents who are one or more of the following are exempt from paying the parent share of cost:

(A) Parents who are participating in Choices or who are in Choices child care described in §809.45 of this chapter;

(B) Parents who are participating in SNAP E&T services or who are in SNAP E&T child care described in §809.47 of this chapter;

(C) Parents of a child receiving Child Care for Children Experiencing Homelessness as described in §809.52 of this chapter; or

(D) Parents who have children who are receiving protective services child care pursuant to §809.49 and §809.54(c) of this chapter, unless DFPS assesses the parent share of cost.

(3) Teen parents who are not covered under exemptions listed in paragraph (2) of this subsection shall be assessed a parent share of cost. The teen parent's share of cost is based solely on the teen parent's income and size of the teen's family as defined in §809.2 of this chapter.

(b) For child care services funded from sources other than those specified in subsection (a) of this section, a Board shall set a parent share of cost policy based on a sliding fee scale. The sliding fee scale may be the same as or different from the provisions contained in subsection (a) of this section.

(c) A Board shall establish a policy regarding reimbursement of providers when parents fail to pay the parent share of cost.

(d) A Board shall establish a policy regarding termination of child care services within a 12-month eligibility period when a parent fails to pay the parent share of cost. The Board's policy must include:

(1) a requirement to evaluate and document each family's financial situation for extenuating circumstances that may affect affordability of the assessed parent share of cost pursuant to paragraph (2) of this subsection, and a possible temporary reduction pursuant to subsection (g) of this section before the Board or its child care contractor may terminate care under this section;

(2) general criteria for determining affordability of a Board's parent share of cost, and a process to identify and assess the circumstances that may jeopardize a family's self-sufficiency under subsection (g) of this section;

(3) maintenance of a list of all terminations due to failure to pay the parent share of cost, including family size, income, family circumstances, and the reason for termination, for use when conducting evaluations of affordability, as required under paragraph (4) of this subsection; and

(4) the Board's definition of what constitutes frequent terminations and its process for assessing the general affordability of the Board's parent share of cost schedule, pursuant to subsection (e) of this section.

(e) A Board with frequent terminations of care for lack of payment of the parent share of cost must reexamine its sliding fee scale and adjust it to ensure that fees are not a barrier to assistance for families at certain income levels.

(f) A Board that does not have a policy to reimburse providers when parents fail to pay the parent share of cost may establish a policy to require the parent to pay the provider before the family can be redetermined eligible for future child care services.

(g) The Board or its child care contractor may review the assessed parent share of cost for a possible temporary reduction if there are extenuating circumstances that jeopardize a family's self-sufficiency. The Board or its child care contractor may temporarily reduce the assessed parent share of cost if warranted by these circumstances. Following the temporary reduction, the parent share of cost amount immediately prior to the reduction shall be reinstated.

(h) If the parent is not covered by an exemption as specified in subsection (a)(2) of this section, then the Board or its child care contractor shall not waive the assessed parent share of cost under any circumstances.

(i) If the parent share of cost, based on family income and family size, is calculated to be zero, then the Board or its child care contractor shall not charge the parent a minimum share of cost amount.

(j) A Board may establish a policy to reduce the parent share of cost amount assessed pursuant to subsection (a)(1)(B) of this section upon the parent's selection of a Texas Rising Star [TRS]--[-]certified provider. Such Board policy shall ensure:

(1) that the parent continue to receive the reduction if:

(A) the Texas Rising Star [TRS] provider loses Texas Rising Star [TRS] certification; or

(B) the parent moves or changes employment within the workforce area and no Texas Rising Star [TRS]-- [-]certified providers are available to meet the needs of the parent's changed circumstances; and

(2) that the parent no longer receives the reduction if the parent voluntarily transfers the child from a Texas Rising Star [TRS]--[-]certified provider to a non-Texas Rising Star [TRS]--[-]certified provider.

(k) A Board may establish a policy to reduce the parent share of cost amount assessed pursuant to subsection (a)(1)(B) of this section upon the child's referral for part-time care. Such Board policy shall ensure that:

(1) the parent no longer receives the reduction if the referral is changed to full-time care; and

(2) a parent qualifies for a reduction in parent share of cost for both selecting a Texas Rising Star--certified provider (as defined in subsection (j) of this section) and a child's part-time care referral will receive the greater of the two discounts.

§809.22.Direct Referrals to Recognized Partnerships.

(a) A recognized partnership is a partnership that:

(1) exists between a child care provider and one of the following:

(A) a public school prekindergarten provider;

(B) a local education agency; or

(C) a Head Start/Early Head Start program; and

(2) requires both parties to have entered into an agreement, such as a memorandum of understanding, and serves some number of children under age six who are dually enrolled in both programs.

(b) A Board shall establish policies and procedures to enroll eligible children who are directly referred by a recognized partnership.

(c) A Board's policy shall exempt children directly referred from a recognized partnership from the Board's waiting list, subject to the availability of funding and the availability of subsidized slots at the partnership site.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 9, 2020.

TRD-202004211

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER E. REQUIREMENTS TO PROVIDE CHILD CARE

40 TAC §§809.91, 809.93, 809.96

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement changes made to Texas Labor Code Chapter 302 and Texas Government Code, Chapter 2308, in a manner that comports with the existing requirements of 45 CFR Part 98.

§809.91.Minimum Requirements for Providers.

(a) A Board shall ensure that child care subsidies are paid only to:

(1) regulated child care providers as described in §809.2 of this chapter, subject to the requirements in subsection (g) of this section;

(2) relative child care providers, as described in §809.2 of this chapter, subject to the requirements in subsection (e) of this section; or

(3) at the Board's option, child care providers licensed in a neighboring state, subject to the following requirements:

(A) Boards shall ensure that the Board's child care contractor reviews the licensing status of the out-of-state provider every month, at a minimum, to confirm the provider is meeting the minimum licensing standards of the state.[;]

(B) Boards shall ensure that the out-of-state provider meets the requirements of the neighboring state to serve CCDF-subsidized children.[; and]

(C) The provider shall agree to comply with the requirements of this chapter and all Board policies and Board child care contractor procedures.

(b) A Board shall not prohibit a relative child care provider that [who] is listed with CCL and [who ] meets the minimum requirements of this section from being an eligible relative child care provider.

(c) Except as provided by the criteria for Texas Rising Star [TRS] Provider certification, a Board or the Board's child care contractor shall not place requirements on regulated providers that:

(1) exceed Pre-Star designation requirements or the state licensing requirements stipulated in Texas Human Resources Code, Chapter 42; or

(2) have the effect of monitoring the provider for compliance with state licensing requirements stipulated in Texas Human Resources Code, Chapter 42.

(d) When a Board or the Board's child care contractor, in the course of fulfilling its responsibilities, gains knowledge of any possible violation regarding regulatory standards, the Board or its child care contractor shall report the information to the appropriate regulatory agency.

(e) For relative child care providers to be eligible for reimbursement for Commission-funded child care services, the following applies:

(1) Relative child care providers shall list with CCL; however, pursuant to 45 CFR §98.41(e), relative child care providers listed with CCL shall be exempt from the health and safety requirements of 45 CFR §98.41(a).

(2) A Board shall allow relative child care providers to care for a child in the child's home (in-home child care) only for the following:

(A) A child with disabilities as defined in §809.2 of this chapter, and his or her siblings;

(B) A child under 18 months of age[,] and his or her siblings;

(C) A child of a teen parent; and

(D) When the parent's work schedule requires evening, overnight, or weekend child care in which taking the child outside of the child's home would be disruptive to the child.

(3) A Board may allow relative in-home child care for circumstances in which the Board's child care contractor determines and documents that other child care provider arrangements are not available in the community.

(f) Boards shall ensure that subsidies are not paid for a child at the following child care providers:

(1) Except for foster parents authorized by DFPS pursuant to §809.49 of this chapter, licensed child care centers, including before- or after-school programs and school-age programs, in which the parent or his or her spouse, including the child's parent or stepparent, is the director or assistant director, or has an ownership interest; or

(2) Licensed, registered, or listed child care homes where the parent also works during the hours his or her child is in care.

(g) Regulated child care providers, except those operated and monitored by the US military, must meet Pre-Star provider designation unless exempted under requirements of subsection (h)(3) of this section.

(h) Pre-Star provider designations and exemptions are defined in the Commission-approved CCDF State Plan and include:

(1) minimum Pre-Star criteria required for each provider type;

(2) a progressive statewide roll out plan to require Pre-Star designation for receipt of subsidies; and

(3) limited provider exemption criteria to ensure parent choice is not negatively impacted by the Pre-Star requirements.

§809.93.Provider Reimbursement.

(a) A Board shall ensure that reimbursement for child care is paid only to the provider.

(b) A Board or its child care contractor shall reimburse a regulated provider based on a child's monthly enrollment authorization, excluding periods of suspension at the concurrence of the parent, as described in §809.51(d) of this chapter.

(c) A Board shall ensure that a relative child care provider is not reimbursed for days on which the child is absent.

(d) A relative child care provider shall not be reimbursed for more children than permitted by the CCL minimum regulatory standards for Registered Child Care Homes. A Board may permit more children to be cared for by a relative child care provider on a case-by-case basis as determined by the Board.

(e) A Board shall not reimburse providers that are debarred from other state or federal programs unless and until the debarment is removed.

(f) Unless otherwise determined by the Board and approved by the Commission for automated reporting purposes, the monthly enrollment authorization described in subsection (b) of this section is based on the unit of service authorized, as follows:

(1) A full-day unit of service is 6 to 12 hours of care provided within a 24-hour period; and

(2) A part-day unit of service is fewer than 6 hours of care provided within a 24-hour period.

(g) A Board or its child care contractor shall ensure that providers are not paid for holding spaces open without a valid contracted slots agreement, as described in §809.96 of this subchapter.

(h) A Board or the Board's child care contractor shall not pay providers:

(1) less, when a child enrolled full time occasionally attends for a part day; or

(2) more, when a child enrolled part time occasionally attends for a full day.

(i) The Board or its child care contractor shall not reimburse a provider retroactively for new Board maximum reimbursement rates or new provider published rates.

(j) A Board or its child care contractor shall ensure that the parent's travel time to and from the child care facility and the parent's work, school, or job training site is included in determining whether to authorize reimbursement for full-day or part-day care under subsection (f) of this section.

§809.96.Contracted Slots Agreements.

(a) In this section, the term "contracted slots agreement" is defined as a Board entering into a contract with a child care provider to reserve a specific number of places, or slots, for children participating in the child care subsidy program. This contract shall:

(1) define the number of slots to be reserved by age group (infant, toddler, preschool, or school-age); and

(2) meet the eligibility requirements as described in subsection (e) of this section.

(b) Boards may enter into a contracted slots agreement with providers that agree to provide subsidized child care services to eligible children residing in the Board's workforce area.

(c) A Board that enters into a contracted slots agreement shall include this strategy in the Board Plan, as described in §809.12 of this chapter.

(d) Each contract between a Board and a provider must identify the number of places (slots) to be reserved for children participating in the child care subsidy program.

(e) To be eligible for a contract, a child care provider must be a Texas Rising Star 3-star or 4-star provider and meet one of the following priorities:

(1) Be located:

(A) where the number of children under age six with working parents is at least three times greater than the capacity of licensed child care providers in the area, based on data published annually by the Commission; or

(B) in an underserved area that has been identified by a Board as having an inadequate supply of child care in accordance with the parameters described in the CCDF State Plan.

(2) have a partnership with local school districts to provide pre-K services;

(3) have a partnership with EHS or HS;

(4) increase the number of places reserved for infants and toddlers by high-quality child care providers; and

(5) satisfy a priority identified in the Board's plan, as described in §809.12 of this chapter.

(f) A Board that enters into a contracted slots agreement may continue payment for reserved slots during times of transition between the time that one child leaves the program and another child is placed in the slot. The period of continued payment shall adhere to the Board's policy for contracted slots agreements, as described in §809.13(c)(14) of this chapter, and may not exceed one month following the month of the vacancy.

(g) Except for children directly referred from recognized partnerships, as described in §809.22 of this chapter, to fill open reserved slots, Boards shall contact families in order of the Board's waiting list:

(1) that requested care in the ZIP code where the provider with the open reserved slot is located; and

(2) whose child is in the age group for which a slot is available.

(h) In accordance with Commission guidelines, Boards that enter into contracted slots agreements shall submit a report to the Commission within six months of entering into a contract, determining the contract's effect on the:

(1) financial stability of providers participating in the contract;

(2) availability of high-quality child care options available to participants in the Commission's subsidy program;

(3) number of high-quality providers in any part of the workforce area with a high concentration of families that need child care;

(4) percentage of children participating in the Commission's subsidized child care program at each Texas Rising Star provider in the workforce area; and

(5) additional information as requested by the Commission.

(i) A Board shall resubmit the report every six months from the due date of the Board's initial report to the Commission.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 9, 2020.

TRD-202004212

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER G. TEXAS RISING STAR PROGRAM

40 TAC §§809.130 - 809.134, 809.136

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement changes made to Texas Labor Code Chapter 302 and Texas Government Code, Chapter 2308, in a manner that comports with the existing requirements of 45 CFR Part 98.

§809.130.Short Title and Purpose.

(a) The rules contained in this subchapter may be cited as the Texas Rising Star [TRS] Program rules.

(b) The purpose of the Texas Rising Star [TRS] Program rules is to interpret and implement Texas Government Code, §2308.3155(b), which requires[requiring ] the Commission to establish rules to administer the Texas Rising Star [TRS] program, including guidelines for rating a child care provider for Texas Rising Star [TRS] certification.

(c) The Texas Rising Star [TRS] Program rules identify the organizational structure and categories of, and the scoring factors that shall be included in, the Texas Rising Star [TRS] guidelines.

(d) The Texas Rising Star [TRS] guidelines for rating a child care provider shall:

(1) describe measures for the Texas Rising Star [TRS] program that contain, at a minimum, measures for child care providers regarding:

(A) director and staff qualifications and training;

(B) teacher [caregiver]-child interactions;

(C) program administration; and [curriculum;]

(D) indoor/outdoor environments; [nutrition and indoor and outdoor activities; and]

[(E) parent involvement and education;]

(2) specify measures that:

(A) must be met in order for a provider to be certified at each star level; and

(B) are observed and have points awarded through on-site assessments; and

(3) specify the scoring methodology and scoring thresholds for each star level.

(e) The Texas Rising Star [TRS] guidelines:

(1) shall be reviewed and updated by the Commission at a minimum of every four years in conjunction with the rule review of Chapter 809, conducted pursuant to Texas Government Code, §2001.039, and the Texas Rising Star [TRS] guidelines review shall:

(A) consider input from stakeholders; and

(B) include at least one public hearing held prior to submitting the stakeholder input to the Commission;

(2) shall be adopted by the Commission subject to the requirements of the Texas Open Meetings Act; and

(3) [also] may be reviewed and amended as determined necessary by the Commission in accordance with the requirements of the Texas Open Meetings Act.

§809.131.Eligibility for the Texas Rising Star [TRS] Program.

[(a)] A child care provider is eligible to apply for the Texas Rising Star [TRS] program if the provider has a current agreement to serve Commission-subsidized children and:

(1) has a permanent (nonexpiring) license or registration from CCL;

(2) has at least 12 months of licensing history with CCL, and is not on:

(A) corrective action with a Board pursuant to Subchapter F of this chapter;

(B) a "Notice of Freeze" with the Commission pursuant to Texas Labor Code, Chapter 213 [of the Texas Labor Code] (Enforcement of the Texas Unemployment Compensation Act) or Chapter 61 [of the Texas Labor Code] (Payment of Wages); or

(C) corrective or adverse action with CCL; and [or]

(3) meets the requirements to be designated as a Pre-Star provider as specified in §802.2(18) of this chapter.

(4) has director and teaching staff registered in the Texas Early Childhood Professional Development System Workforce Registry; or

(5) [(3)] is regulated by and in good standing with the US Military.

[(b) A child care facility is not eligible to apply for the TRS program if, during the most recent 12-month CCL licensing history, the provider had:

[(1) any of the critical licensing deficiencies listed in the TRS guidelines;]

[(2) five or more of the high or medium-high licensing deficiencies listed in the TRS guidelines; or]

[(3) 10 or more total licensing deficiencies of any type.]

§809.132.Impact of Certain Deficiencies on Texas Rising Star [TRS] Certification.

(a) A Texas Rising Star [TRS] provider shall lose Texas Rising Star [TRS] certification if the provider:

(1) is placed on corrective action with a Board pursuant to Subchapter F of this chapter;

(2) is under a "Notice of Freeze" with the Commission pursuant to Chapter 213 of the Texas Labor Code (Enforcement of the Texas Unemployment Compensation Act) or Chapter 61 of the Texas Labor Code (Payment of Wages);

(3) is placed on corrective or adverse action by CCL; [or]

(4) had 15 or more total high or medium-high weighted licensing deficiencies [of any type] during the most recent 12-month licensing history;

(5) had more than four probationary impacts during its three-year certification period;

(6) had a consecutive third probationary impact; or

(7) is cited for specified CCL minimum standards regarding weapons and ammunition.

(b) Texas Rising Star [TRS] providers with any of the specified "star level drop" [critical] licensing deficiencies listed in the Texas Rising Star [TRS ] guidelines during the most recent 12-month CCL licensing history shall be placed on a six-month Texas Rising Star program probationary period. Furthermore [shall have the following consequences]:

(1) reduction of one star [one-star] level for each deficiency cited, so a 4-star certified provider [Star Program Provider] is reduced to a 3-star provider [Star Program Provider], a 3-star provider [Star Program Provider] is reduced to a 2-star provider [Star Provider]; or

(2) a 2-star provider [Star Provider] loses certification.

(c) Texas Rising Star [TRS] providers with any of the specified "probationary" licensing [five or more of the high or medium-high] deficiencies listed in the Texas Rising Star [TRS] guidelines during the most recent 12-month CCL licensing history shall be placed on a six-month Texas Rising Star probationary period. Furthermore: [shall lose a star level with a 2-Star Program Provider losing certification.]

(1) Texas Rising Star providers on a six-month Texas Rising Star probationary period that are cited by CCL for any additional specified probationary deficiencies within the probationary period shall be placed on a second, consecutive probation and lose a star level, with a 2-star certified provider losing certification;

(2) if CCL does not cite any additional specified probationary deficiencies during the probationary period, the provider can be removed from probation status; and

(3) if any additional specified probationary deficiencies are cited by CCL during the second probationary period, the Texas Rising Star provider shall lose certification.

(d) Texas Rising Star [TRS] providers with 10 to 14 total high or medium-high weighted licensing deficiencies [of any type] during the most recent 12-month CCL licensing history shall be placed on a six-month Texas Rising Star [TRS] program probationary period. Furthermore [Further]:

(1) Texas Rising Star [TRS] providers on a six-month probationary period that are cited [re-cited ] by CCL within the probationary period for any additional high or medium-high weighted [of the same] deficiencies shall be placed on a second, consecutive probation and lose a star level, with a 2-star provider [Star Program Provider] losing certification;

(2) if no additional high or medium-high weighted deficiencies are cited by CCL during the probationary period, the provider can be removed from probation status [if any new deficiencies--not to exceed 14 total deficiencies--are cited by CCL during the first probationary period, a second six-month probationary period shall be established effective upon the date of final CCL determination of the deficiencies]; and

(3) if any new high or medium-high weighted deficiencies--not to exceed 14 total deficiencies--are cited by CCL during the second six-month probationary period, a provider shall lose Texas Rising Star [TRS] certification.

(e) Providers losing a star level due to licensing deficiencies shall be reinstated at the former star level if no citations described in subsections (b) - (d) of this section [§809.132(b) - (d)] occur within the six-month reduction time frame.

(f) Providers losing Texas Rising Star [TRS ] certification shall be eligible to reapply for certification after six months following the loss of the certification, as long as no [current] deficiencies described in subsections (b) - (d) of this section [are re-cited and no additional licensing deficiencies] are cited during the disqualification period.

§809.133.Application and Assessments for the Texas Rising Star [TRS] Program.

(a) Texas Rising Star certification [TRS program] applicants must complete:

(1) an orientation on the Texas Rising Star [TRS] guidelines, including an overview of the:

(A) Texas Rising Star [TRS] program application process;

(B) Texas Rising Star [TRS] program measures; and

(C) Texas Rising Star [TRS] program assessment process;

(2) the creation of a continuous quality improvement plan; and

(3) [(2)] a Texas Rising Star [TRS] program self-assessment tool.

(b) Boards shall ensure that:

(1) written acknowledgment of receipt of the application and self-assessment is sent to the provider;

(2) within 20 days of receipt of the application, the provider is sent an estimated time frame for scheduling the initial assessment;

(3) an assessment is conducted for any provider that meets the eligibility requirements in §809.131 of this subchapter and requests to participate in the Texas Rising Star [TRS] program; and

(4) Texas Rising Star [TRS] certification is granted for any provider that is assessed and verified as meeting the Texas Rising Star [TRS] provider certification criteria set forth in the Texas Rising Star [TRS] guidelines.

(c) Boards shall ensure that Texas Rising Star [TRS] assessments are conducted as follows:

(1) On-site assessment of 100 percent of the provider classrooms at the initial assessment for Texas Rising Star [TRS] certification and at each scheduled recertification; and

(2) Recertification of all certified Texas Rising Star [TRS] providers every three years.

(d) Boards shall ensure that certified Texas Rising Star [TRS] providers are monitored on an annual basis and the monitoring includes:

(1) at least one unannounced on-site visit; and

(2) a review of the provider's licensing compliance as described in [new] §809.132 of this subchapter.

(e) Boards shall ensure compliance with the process and procedures in the Texas Rising Star [TRS] guidelines for conducting assessments of nationally accredited child care facilities and child care facilities regulated by the US Military.

(f) Boards shall ensure compliance with the process and procedures in the Texas Rising Star [TRS] guidelines for conducting assessments of certified Texas Rising Star [TRS] providers that have a change of ownership, move, or expand locations.

(g) Boards shall ensure compliance with the process and procedures in the Texas Rising Star guidelines for implementing and supporting a continuous quality improvement framework.

§809.134.Minimum Qualifications for Texas Rising Star Staff [TRS Assessors and Mentors].

(a) Boards shall ensure that Texas Rising Star staff meet the minimum requirements in subsections (b) - (g) of this section.

(b) [(a)] Texas Rising Star staff shall [Boards shall ensure that TRS assessors and mentors] meet the minimum education requirements as follows:

(1) Bachelor's degree from an accredited four-year college or university in early childhood education, child development, special education, child psychology, educational psychology, elementary education, or family consumer science;

(2) Bachelor's degree from an accredited four-year college or university with at least 18 credit hours in early childhood education, child development, special education, child psychology, educational psychology, elementary education, or family consumer science with at least 12 credit hours in child development; or

(3) Associate's degree in early childhood education, child development, special education, child psychology, educational psychology, elementary education, or family consumer science with two years of experience as a director in an early childhood program, with preference given to experience with a provider that is accredited or Texas Rising Star [TRS] certified.

(c) [(b)] The Commission may grant a waiver of no more than two years to obtain [of] the minimum education requirements in subsection (b) [subsection (a)] of this section if a Board can demonstrate that no applicants in its [local] workforce [development] area meet the minimum education requirements.

(d) [(c)] Texas Rising Star staff shall [Boards shall ensure that TRS assessors and mentors] meet the minimum work experience requirements of one year of full-time early childhood classroom experience in a child care, EHS [Early Head Start], HS [Head Start], or pre-K [prekindergarten] through third-grade school program.

[(d) Boards shall ensure that if an individual performs the duties of both an assessor and a mentor, the individual providing TRS mentoring services to a provider does not act as the assessor of that same provider when determining TRS certification.]

[(e) Boards shall ensure that TRS assessors and mentors are required to complete annual professional development and continuing education consistent with the TRS annual minimum training hours requirement for a TRS-certified child care center director.]

(e) [(f)] Texas Rising Star staff shall [Boards shall ensure that TRS assessors and mentors] meet the background check requirement consistent with Chapter 745 of this title.

(f) [(g)] Texas Rising Star staff shall [Boards shall ensure that TRS assessors and mentors] demonstrate:

(1) knowledge of best practices in early childhood education; and

(2) understanding of early childhood evaluations, observations, and assessment tools for both teachers and children.

(g) Texas Rising Star staff shall meet the following training and certification criteria:

(1) All staff must complete the Texas Rising Star standards training, as described in the Texas Rising Star guidelines.

(2) All assessors must attain and maintain the Texas Rising Star Assessor Certification, as described in the Texas Rising Star guidelines

(3) All mentors must attain mentor micro-credentialing, as described in the Texas Rising Star guidelines.

§809.136.Roles and Responsibilities of Texas Rising Star Staff.

Boards shall ensure that Texas Rising Star staff members comply with their assigned responsibilities, as applicable.

(1) A mentor is defined as a designated staff member who helps providers obtain, maintain, or achieve higher star levels of certification.

(2) An assessor is defined as a designated staff member who assesses and monitors providers that obtain, maintain, and achieve higher levels of quality.

(3) Dual-role staff is defined as designated staff members who assume the role of the assessor and mentor.

(4) If an individual performs the duties of both an assessor and a mentor, the individual providing Texas Rising Star mentoring services to a provider does not act as the assessor of that same provider when determining Texas Rising Star certification.

(5) Texas Rising Star staff members are required to complete annual professional development and continuing education consistent with the Texas Rising Star annual minimum training hours requirement for a Texas Rising Star--certified child care center director.

(6) Per the Texas Family Code, §261.101, Texas Rising Star staff members are mandated reporters when observing serious incidents as described in the Texas Rising Star guidelines.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 9, 2020.

TRD-202004213

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


CHAPTER 823. INTEGRATED COMPLAINTS, HEARINGS, AND APPEALS

The Texas Workforce Commission (TWC) proposes amendments to the following sections of Chapter 823, relating to Integrated Complaints, Hearings, and Appeals:

Subchapter A. General Provisions, §§823.1 - 823.4

Subchapter B. Board Complaint and Appeal Procedures, §§823.10 - 823.14

Subchapter C. Agency Complaint and Appeal Procedures, §§823.20 - §823.22 and §823.24

Subchapter D. Agency-Level Decisions, Reopenings, and Rehearings, §§823.30 - §823.32

TWC proposes the following new section of Chapter 823, relating to Integrated Complaints, Hearings, and Appeals:

Subchapter D. Agency-Level Decisions, Reopenings, and Rehearings, §823.34

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

TWC Chapter 823 rules set forth uniform procedures and time frames for complaints and appeals processes for all workforce services administered by Local Workforce Development Boards (Boards). The purpose of the proposed Chapter 823 amendments is to specify the parties and programs to which Chapter 823 applies and does not apply, establish a distinction between state-level hearing officers and individuals who handle complaints at the Board level, align Chapter 823 with the Workforce Innovation and Opportunity Act (WIOA), and implement 20 Code of Federal Regulations (CFR) §683.600 relating to participants' and interested or affected parties' right to appeal local-level decisions and TWC's final decisions to the US Secretary of Labor.

This rulemaking serves as a rule review in accordance with Texas Government Code, §2001.039, which requires that every four years each state agency review and consider for readoption, revision, or repeal each rule adopted by that agency.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER A. GENERAL PROVISIONS

TWC proposes the following amendments to Subchapter A:

§823.1. Short Title and Purpose

Section 823.1 is amended to update the list of programs that are subject to Chapter 823, add that Chapter 823 does not apply to contract disputes, and add subsection (c)(9) and (10) to clarify which actions or disputes are not covered by Chapter 823.

§823.2. Definitions

Section 823.2 is amended to add a definition of "Board adjudicator" and to update language to distinguish between individuals who preside over Board-level and Agency-level disputes.

§823.3. Timeliness

Section 823.3 is amended to distinguish between Board-level complaints and reviews and Agency-level appeals.

§823.4. Representation

Section 823.4 is amended to clarify that a party may have a representative at an informal resolution proceeding in addition to a Board adjudication or an Agency hearing.

SUBCHAPTER B. BOARD COMPLAINT AND APPEAL PROCEDURES

TWC proposes the following amendments to Subchapter B:

§823.10. Board-Level Complaints

Section 823.10 is amended to clarify and update language consistent with WIOA and current TWC terminology.

§823.11. Determinations

Section 823.11 is amended to reflect changes from the WIA program name to the current WIOA program name with related section updates.

§823.12. Board Informal Resolution Procedure

Section 823.12 is amended to provide clarity by changing "Boards" to "Each Board."

§823.13. Board Reviews

Section 823.13 is amended to reflect that Boards conduct reviews rather than hearings and the section title is changed from "Board Hearings" to "Board Reviews."

Section 823.13 is also amended to distinguish Board processes from Agency processes and to indicate that Board reviews are conducted by Board adjudicators and hearings are conducted by Agency hearing officers. The amendments also update the mailing address for submitting appeals to the Agency.

§823.14. Board Policies for Resolving Complaints and Appeals of Determinations

Section 823.14 is amended to reflect that individuals handling Board-level complaints are adjudicators and that the process by which they resolve disputes is called Board review.

SUBCHAPTER C. AGENCY COMPLAINT AND APPEAL PROCEDURES

TWC proposes the following amendments to Subchapter C:

§823.20. State-Level Complaints

Section 823.20 is amended to update the mailing address for submitting appeals made directly to the Agency.

§823.21. Hearings

Section 823.21 is amended to update the WIOA program name and to state that parties may request accommodations for Board reviews and Agency hearings.

§823.22. Postponement and Continuance

Section 823.22 is amended to give Agency hearing officers the ability to postpone or continue hearings using their best judgment.

§823.24. Hearing Procedures

Section 823.24 is amended to remove language indicating that would provide transcripts of hearing recordings if a party pays the cost. The Agency does not transcribe hearings.

SUBCHAPTER D. AGENCY-LEVEL DECISIONS, REOPENINGS, AND REHEARINGS

TWC proposes the following amendments to Subchapter D:

§823.30. Hearing Decision

Section 823.30 is amended to specify the number of days a hearing officer has to issue a written decision in WIOA-related cases. Section 823.30 is also amended to add language indicating that the Agency may take continuing jurisdiction over an Agency decision for the purposes of reconsidering issues and taking additional evidence, in addition to issuing a corrected decision. The section is also amended to clarify that representatives and observers who attended a hearing need to be listed in the Agency's decision.

§823.31. Petition for Reopening

Section 823.31 is amended to update the name of the process by which a party requests that a hearing be reopened to petition. Additionally, the section is amended to state that a party must show good cause for failure to appear at the hearing and that timeliness rules in Chapter 823 apply to the petition.

§823.32. Motion for Rehearing and Decision

Section 823.32 is amended to align with Motion for Rehearing rules for other programs within the Agency which that require a Motion for Rehearing to meet certain criteria. The section is also amended to clarify that the Agency hearing officer may take certain actions in relation to that motion.

§823.34. Federal Appeals

New §823.34 implements 20 CFR §683.600, relating to participants' and interested or affected parties' right to appeal local-level decisions and final Agency decisions to the US Secretary of Labor.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code, §2001.024, TWC has determined that the requirement to repeal or amend a rule, as required by Texas Government Code, §2001.0045), does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The Commission completed a Takings Impact Analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to specify the parties and programs to which Chapter 823 applies and does not apply, establish a distinction between state-level hearing officers and individuals who handle complaints at the Board level, align Chapter 823 with WIOA, and implement 20 CFR §683.600 relating to participants' and interested or affected parties' right to appeal local-level decisions and TWC's final decisions to the US Secretary of Labor.

The proposed rulemaking action will not create any additional burden on private real property or affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

TWC has determined that during the first five years the amendments will be in effect:

--the amendments will not create or eliminate a government program;

--implementation of the amendments will not require the creation or elimination of employee positions;

--implementation of the amendments will not require an increase or decrease in future legislative appropriations to TWC;

--the amendments will not require an increase or decrease in fees paid to TWC;

--the amendments will not create a new regulation;

--the amendments will not expand, limit, or eliminate an existing regulation;

--the amendments will not change the number of individuals subject to the rules; and

--the amendments will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

TWC has determined that the rules will not have an adverse economic impact on small businesses or rural communities, as these rules place no requirements on small businesses or rural communities.

Mariana Vega, Director, Labor Market and Career Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Clay Cole, Director, Unemployment Insurance Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be to ensure that the rules set forth in Chapter 823 align with WIOA, which replaced WIA.

Courtney Arbour, Director, Workforce Development Division, has determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the rules will be to ensure that the rules set forth in Chapter 823 align with WIOA, which replaced the WIA.

TWC hereby certifies that the proposal has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.

PART IV. COORDINATION ACTIVITIES

In the development of these rules for publication and public comment, TWC sought the involvement of Texas' 28 Boards. TWC provided the concept paper regarding these rule amendments to the Boards for consideration and review on June 23, 2020. TWC also conducted a conference call with Board executive directors and Board staff on June 26, 2020, to discuss the concept paper. During the rulemaking process, TWC considered all information gathered in order to develop rules that provide clear and concise direction to all parties involved.

Comments on the proposed rules may be submitted to TWCPolicyComments@twc.state.tx.us. Comments must be received no later than 30 days from the date this proposal is published in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §§823.1 - 823.4

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement the appeal, complaint, and grievance provisions set forth in Texas Labor Code, Title 4, Subtitle B, Section 301.192, Texas Human Resources Code Section 44.002, as well as those set forth in 29 USC 3241 and 29 USC 3152.

§823.1.Short Title and Purpose.

(a) This chapter provides an appeals process to the extent authorized by federal and state law and by rules administered by the Texas Workforce Commission (Agency).

(b) This section applies only to complaints or determinations regarding federal- or state-funded workforce services administered by the Agency or Local Workforce Development Boards (Boards), as follows:

(1) Child care;

(2) Temporary Assistance for Needy Families (TANF)Choices;

(3) Supplemental Nutrition Assistance Program (SNAP) Employment and Training (E&T) [Food Stamp Employment and Training (FSE&T)];

[(4) Project Reintegration of Offenders (Project RIO);]

(4) [(5)] Workforce Innovation and Opportunity Act (WIOA) adult, dislocated worker, and youth programs [Workforce Investment Act (WIA) Adult, Dislocated Worker, and Youth]; and

(5) [(6)] Eligible Training Providers (ETPs) [(ETP)] receiving WIOA [WIA] funds or other funds for training services.

(c) Determinations or complaints relating to the following matters are not governed by this chapter:

(1) Across-the-board reductions of services, benefits, or assistance to a class of recipients;

(2) Matters governed by hearing procedures otherwise provided for in this title;

(3) Alleged violations of nondiscrimination and equal opportunity requirements;

(4) Denial of benefits as related [it relates] to mandatory work requirements for individuals receiving TANF and SNAP E&T [FSE&T] services and is administered through the Texas Health and Human Services Commission (HHSC);

(5) Matters governing job service-related complaints as referenced in 20 CFR [C.F.R.] Part 658, Subpart E, §§658.400, 658.410, 658.411, 658.417, and 658.418 [§§400 - 418] and the federal Employment Service law;

(6) Services provided by the Commission pursuant to Texas Labor Code §301.023, relating to Complaints Against [the] Commission; [or]

(7) Alleged criminal violations of any services referenced in subsection (b) of this section; [§823.1(b).]

(8) Disputes between contractors and Boards;

(9) Contract disputes; or

(10) Any other determination or complaint not listed in subsection (b) of this section.

§823.2.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Adverse action--Any denial or reduction in benefits or services to a party or [, including] displacement of an individual from current employment by a Workforce Solutions Office [Texas Workforce Center] customer.

(2) Agency decision--The written finding issued by an Agency hearing officer following a hearing before that hearing officer.

(3) Appeal--A written request for a review filed with the Board or the Agency by an individual [a person] in response to a determination or decision.

(4) Board adjudicator--An impartial individual designated by the Board to participate in informal dispute resolutions and to review and issue Board decisions.

(5) [(4)] Board decision--The written finding issued by a Board adjudicator [hearing officer] following a hearing before that adjudicator [hearing officer] in response to an appeal or complaint.

(6) [(5)] Complaint--A written statement alleging a violation of any law, regulation, or rule relating to any federal- or state-funded workforce service covered by this chapter.

(7) [(6)] Determination--A written order [statement] issued to a Workforce Solutions Office [Texas Workforce Center] customer by a Board, its designee, or the Agency relating to an adverse action, or to a provider or contractor relating to denial or termination of eligibility under programs administered by the Agency or a Board listed in §823.1(b) of this subchapter (relating to Short Title and Purpose).

(8) [(7)] Hearing officer--An impartial individual designated by [either the Board or] the Agency to conduct hearings and issue Agency [administrative ] decisions.

(9) [(8)] Informal resolution--Any procedure that results in an agreed final settlement between all parties to a complaint.

(10) [(9)] Party--An individual [A person] who files a complaint or who appeals a determination or the entity against which the complaint is filed or that issued the determination.

§823.3.[Agency and Board] Timeliness.

(a) A properly addressed determination or decision is final for all purposes unless the party to whom it is mailed files an appeal no later than 14 [the fourteenth] calendar days [day] after the mailing date.

(b) Each party to a complaint, adjudication, or [an] appeal shall promptly notify, in writing, the Board, Board's designee, or the Agency with which the complaint or appeal was filed of any change of mailing address. Determinations and decisions shall be mailed to the new [this] address.

(1) A copy of the determination or decision must be mailed to a properly designated party representative in order for it to become final.

(2) The Board or Agency is responsible for making an address change only if the Board or Agency is specifically directed by the party to mail subsequent correspondence to the new address.

(3) If the Board, Board's designee, or Agency addresses a document incorrectly, but the party receives the document, the time frame for filing an appeal shall begin as of the actual date of receipt by the party, whether or not the party receives the document within the appeal time frame set forth in subsection (a) of this section. However, this does not apply if the party fails to provide a current address or provides an incorrect address.

(c) A determination or decision mailed to a party shall be presumed to have been delivered if the document was mailed as specified in subsection (b) of this section.

(1) A determination or decision shall not be presumed to have been delivered:

(A) if there is tangible evidence of nondelivery, such as being returned to the sender by the US [U.S. ] Postal Service; or

(B) if credible and persuasive evidence is submitted to establish nondelivery or delayed delivery to the proper address.

(2) If a party provides the Board or Agency with an incorrect mailing address, a mailing to that address shall be considered a proper mailing, even if there is proof that the party never received the document.

(d) A complaint or an appeal shall be in writing. Complaints or appeals may be filed electronically only if filed in a form approved by the Agency in writing. The filing date for a complaint or an appeal shall be:

(1) the postmark [postmarked] date or the postal meter date (where there is only one or the other);

(2) the postmark [postmarked] date, if there is both a postmark date and a postal meter date;

(3) the date the document was delivered to a common carrier, which is equivalent to the postmark [postmarked] date;

(4) three business days before receipt by the Board or Agency, if the document was received in an envelope bearing no legible postmark, postal meter date, or date of delivery by a common carrier;

(5) the date of the document itself, if the document date is fewer than three days earlier than the date of receipt and if the document was received in an envelope bearing no legible postmark, postal meter date, or date of delivery by a common carrier;

(6) the date of the document itself, if the mailing envelope containing the complaint or appeal is lost after delivery to the Board or Agency. If the document is undated, the filing date shall be deemed to be three business days before receipt by the Board or Agency; or

(7) the date of receipt by the Board or Agency, if the document was filed by fax.

(e) Credible and persuasive testimony under oath, subject to cross-examination, may establish a filing date that is earlier than the dates established under subsection (d) of this section. A party shall be allowed to establish a filing date earlier than a postal meter date or the date of the document itself only upon a showing of extremely credible and persuasive evidence. Likewise, when a party alleges that a complaint or appeal has been filed that the Board or Agency has never received, the party must present [extremely] credible and persuasive evidence to support the allegation.

(f) A decision or determination shall not be deemed final if a party shows that a representative of the Board, the Board's designee, or Agency has given misleading information on appeal rights to the party. The party shall specifically establish:

(1) how the party was misled; or

(2) what misleading information the party was given, and, if possible, by whom the party was misled.

(g) There is no good cause exception to the timeliness rules.

§823.4.Representation.

A [Each] party may authorize a [hearing ] representative to assist with participating in an informal resolution or in presenting a complaint or an appeal on behalf of the party under this chapter. The Agency or Board may require the authorization to be in writing. On behalf of the party, the [hearing] representative may exercise any of the party's rights under this chapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2020.

TRD-202004173

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER B. BOARD COMPLAINT AND APPEAL PROCEDURES

40 TAC §§823.10 - 823.14

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement the appeal, complaint, and grievance provisions set forth in Texas Labor Code, Title 4, Subtitle B, Section 301.192, Texas Human Resources Code Section 44.002, as well as those set forth in 29 USC 3241 and 29 USC 3152.

§823.10.Board-Level Complaints.

(a) Individuals [Persons] who may file a complaint include:

(1) Workforce Solutions Office [Texas Workforce Center] customers;

(2) other interested individuals [persons] affected by the One-Stop Service Delivery System, [Network, ] including subrecipients and eligible training providers; and

(3) previously employed individuals who believe they were displaced by a Workforce Solutions Office [Texas Workforce Center] customer participating in work-based services such as subsidized employment, work experience, or workfare.

(b) Complaints shall be in writing and filed within 180 calendar days of the alleged violation.

(c) The complaint shall include:

(1) the complainant's [party's] name and current mailing address; and

(2) a brief statement of the alleged violation stating [identifying] the facts on which the complaint is based.

(d) Each Board shall ensure that information about complaint procedures is provided to individuals, eligible training providers, and subrecipients. The information provided shall be presented in such a manner as to be understood by the affected individuals, including youth, individuals with disabilities, and individuals with limited English proficiency. This information shall be:

(1) posted in a conspicuous public location at each Workforce Solutions Office [Texas Workforce Center];

(2) provided in writing to any customer;

(3) made available in writing to any individual upon request; and

(4) placed in each Workforce Solutions Office [Texas Workforce Center] customer's file.

§823.11.Determinations.

(a) A determination affecting the type and level of services or benefits to be provided by a Board or its designee shall be promptly provided to any individual [person] directly affected.

(b) The determination shall include the following:

(1) a [A] brief statement of the adverse action;

(2) the [The] mailing date of the determination;

(3) an [An] explanation of the individual's right to an appeal;

(4) the [The] procedures for requesting informal resolution with the Board and for filing an appeal to the Board, including applicable time frames as required in §823.3 of this chapter (Timeliness);

(5) the [The] right to have a [hearing] representative, including legal counsel; and

(6) the [The] address and fax number to which a request for informal resolution or appeal may be sent [or fax number to send the appeal].

(c) Boards shall allow training service providers [of training services] the opportunity to appeal a determination related to the:

(1) denial of eligibility as a training provider under WIOA, §122(b), (c), or (d) [WIA §122(b), §122(c), or §122(e)];

(2) termination of eligibility as a training provider or other action under WIOA, §122(f) [WIA §122(f)]; or

(3) denial of eligibility as a training provider of on-the-job or customized training by the operator of a Workforce Solutions Office [Texas Workforce Center] under WIOA, §122(h) [WIA §122(h)].

(d) An individual who [A person that] receives a determination from a Board or a Board's designee may file an appeal with the Board requesting a review of the determination. The appeal must be submitted in writing, be filed within 14 calendar days of the mailing date of the determination, and include the party's proper mailing address.

§823.12.Board Informal Resolution Procedure.

(a) Each Board [Boards] shall provide an opportunity for informal resolution of a complaint or appeal.

(b) Informal resolution may include, but is not limited to:

(1) informal meetings with case managers or their supervisors;

(2) second reviews of the case file;

(3) telephone calls or conference calls to the affected parties;

(4) in-person interviews with all affected parties; or

(5) written explanations or summaries of the laws or regulations involved in the complaint.

§823.13.Board Reviews [Hearings].

(a) If the informal resolution procedure results in a final agreement between the parties, no hearing shall be held.

(b) If no [final] informal resolution is reached, Boards shall provide an opportunity for a formal review [hearing] to resolve an appeal or complaint.

(c) Either a final agreement resulting from an informal resolution or a hearing and Board decision shall be completed within 60 calendar days of the original filing of the appeal or complaint.

(d) Boards shall provide a process that allows an individual alleging a labor standards violation to submit a complaint to a binding arbitration procedure[,] if a collective bargaining agreement covering the parties to the complaint so provides.

(e) Within 60 calendar days of the filing of the appeal or complaint, the Board shall send the parties a decision setting forth the results of the hearing. The decision shall be issued by a Board adjudicator, [hearing officer, shall] include findings of fact and conclusions of law, and [shall] provide information about appeal rights to the parties.

(f) If no Board decision is mailed within the 60 calendar-day time frame described in subsection (e) of this section, or if any party disagrees with a timely Board decision, a party may file an appeal with the Agency.

(g) An appeal to the Agency shall be filed in writing by mail, fax, or hand delivery with the TWC Commission Appeals Department at its state office, 101 E. 15th Street, CA Hearings Unit, Room 678, Austin, Texas, 78778, or faxed to the number provided in the determination or decision [Appeals, Texas Workforce Commission 101 East 15th St., Room 410, Austin, Texas 78778-0001,] within 14 calendar days after the mailing date of the Board's decision. If the Board does not issue a decision within 60 calendar days of the date of the filing of the original appeal or complaint, an appeal to the Agency must be filed no later than 90 calendar days after the filing date of the original appeal or complaint.

§823.14.Board Policies for Resolving Complaints and Appeals of Determinations.

(a) Each [A] Board shall establish written policies to handle complaints and appeals of determinations, provide the opportunity for informal resolution, and conduct reviews [hearings] in compliance with this subchapter for individuals, eligible training providers, and other individuals [persons] affected by the One-Stop Service Delivery System, [Network,] including subrecipients.

(b) A Board shall maintain written copies of these policies[,] and make them available to the Agency, Workforce Solutions Office [Texas Workforce Center] customers, and other interested individuals [persons] upon request. A Board shall require that its subrecipients provide these policies to Workforce Solutions Office [Texas Workforce Center] customers and other interested individuals [persons] upon request.

(c) At a minimum, a Board shall [develop and approve policies to]:

(1) develop and approve policies to ensure that determinations are provided as specified in §823.11 of this subchapter (relating to Determinations);

(2) develop and approve policies to ensure that information about complaint procedures is available as described in §823.10(d) of this subchapter (Board-Level Complaints);

(3) notify individuals [persons] that complaints must be submitted in writing and set forth the facts on which the complaint is based, and notify them of the time limit in which to file a complaint;

(4) maintain a complaint log and all complaint-related materials in a secure file for a period of three years after final resolution;

(5) designate an individual to be responsible for investigating, documenting, [investigation, documentation,] monitoring, and following up on complaints;

(6) inform individuals [persons] of the:

(A) right to file a complaint;

(B) right to appeal a determination;

(C) opportunity for informal resolution and a Board review [hearing];

(D) time frame in which to either reach informal resolution or to issue a Board decision; and

(E) right to file an appeal to the Agency, including providing information on where to file the appeal;

(7) designate adjudicators [hearing officers] to conduct Board hearings, document actions taken, and render decisions; and

(8) ensure that complaints remanded from the Agency to the Board for resolution are handled in a timely fashion and follow established Board policies and time frames.

(d) Complaints filed directly with the Agency may be remanded to the appropriate Board to be processed in accordance with the Board's policies for resolving complaints.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2020.

TRD-202004174

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER C. AGENCY COMPLAINT AND APPEAL PROCEDURES

40 TAC §§823.20 - 823.22, 823.24

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement the appeal, complaint, and grievance provisions set forth in Texas Labor Code, Title 4, Subtitle B, Section 301.192, Texas Human Resources Code Section 44.002, as well as those set forth in 29 USC 3241 and 29 USC 3152.

§823.20.State-Level Complaints.

(a) A Workforce Solutions Office [Texas Workforce Center] customer or other interested individual [person] affected by the statewide One-Stop Service Delivery System [Network], including service providers that allege a noncriminal violation of the requirements of any federal- or state-funded workforce services, may file a complaint with the Agency.

(b) Complaints shall be in writing and filed within 180 calendar days of the alleged violation. The complaint shall include the party's name, current mailing address, and a brief statement of the alleged violation identifying the facts on which the complaint is based.

(c) The complaint shall be filed with the TWC Commission Appeals Department at its state office, 101 E. 15th Street, CA Hearings Unit, Room 678, Austin, Texas, 78778 [TWC Appeals, Texas Workforce Commission, 101 East 15th St., Room 410, Austin, Texas 78778-0001].

(d) The Agency shall provide an opportunity for informal resolution.

(e) If the informal resolution procedure results in a final agreement between the parties, no hearing shall be held.

(f) If no final informal resolution is reached, the complaint shall be promptly set for a hearing and a decision shall be issued in accordance with the procedures for appeals under this subchapter.

(g) Complaints filed directly with the Agency may be remanded to the appropriate Board to be processed in accordance with the Board's hearing policies.

§823.21.Hearings [Setting a Hearing].

(a) A WIOA-funded [WIA-funded] training provider or other provider certified by the Agency and later found to be ineligible to receive funding as a training provider may file an appeal directly with the Agency.

(b) Upon receipt of an appeal from a Board decision, an appeal pursuant to subsection (a) of this section, or if no informal resolution of a complaint is successfully reached pursuant to §823.20 of this subchapter (relating to State-Level Complaints), the Agency shall promptly assign a hearing officer and mail a notice of hearing to the parties and/or their designated representatives. The hearing shall be set and held promptly and in no case later than as provided by applicable statute or rule.

(c) The notice of hearing shall be in writing and include a:

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

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

(3) short and plain statement of the issues to be considered during the hearing.

(d) The notice of hearing shall be issued at least 10 calendar days before the date of the hearing unless a shorter period is permitted by statute.

(e) Hearings shall be conducted by telephonic means, unless an in-person hearing is required by applicable statute or the Agency determines that an in-person hearing is necessary.

(f) Parties may request accommodations, including interpreters, through the hearing officer or Agency staff [needing special accommodations, including the need for a bilingual or sign language interpreter, shall make this request before the hearing is set, if possible, or as soon as practical].

§823.22.Postponement and Continuance.

(a) The hearing officer shall use his or her best judgment to determine when to grant a continuance of postponement of a hearing in order to secure all the evidence that is necessary and to be fair to the parties [may grant a postponement of a hearing for good cause at a party's request. Except in emergencies or unusual circumstances confirmed by a telephone call or other means, no postponements shall be granted within two days of the scheduled hearing].

(b) Before the hearing, requests for a continuance or a postponement of a hearing may be made informally, either orally or in writing, to the hearing officer.

[(b) A continuance of a hearing may be ordered at the discretion of the hearing officer if:]

[(1) there is insufficient evidence upon which to make a decision;]

[(2) a party needs additional time to examine evidence presented at the hearing;]

[(3) the hearing officer considers it necessary to enter into evidence additional information or testimony;]

[(4) an in-person hearing is necessary for proper presentation of the evidence; or]

[(5) any other reason deemed appropriate by the hearing officer.]

[(c) The hearing officer shall advise the parties of the reason for the continuance and of any additional information required. At the continuance, the parties shall have an opportunity to rebut any additional evidence.]

§823.24.Hearing Procedures.

(a) General Procedure. All hearings shall be conducted de novo. The hearing shall be conducted informally and in such manner as to ascertain the substantive rights of the parties. The hearing officer shall develop the evidence. All issues relevant to the appeal shall be considered and addressed.

(1) Presentation of Evidence. The parties to an appeal may present evidence that is material and relevant, as determined by the hearing officer. In conducting a hearing, the hearing officer shall actively develop the record on the relevant circumstances and facts to resolve all issues. To be considered as evidence in a decision, any document or physical evidence must be entered as an exhibit at the hearing. A party has the right to object to evidence offered at the hearing by the hearing officer or other parties.

(2) Examination of Witnesses and Parties. The hearing officer shall examine parties and any witnesses under oath and shall allow cross-examination to the extent the hearing officer deems necessary to afford the parties due process.

(3) Additional Evidence. The hearing officer, with or without notice to any of the parties, may take additional evidence deemed necessary, provided that a party shall be given an opportunity to rebut the evidence if it is to be used against the party's interest.

(4) Appropriate Hearing Behavior. All parties shall conduct themselves in an appropriate manner. The hearing officer may expel any individual, including a party, who fails to correct behavior the hearing officer identifies as disruptive. After an expulsion, the hearing officer may proceed with the hearing and render a decision.

(b) Records.

(1) The hearing record shall include the audio recording of the proceeding and any other relevant evidence relied on by the hearing officer, including documents and other physical evidence entered as exhibits.

(2) The hearing record shall be maintained in accordance with federal or state law.

(3) Confidentiality of information contained in the hearing record shall be maintained in accordance with federal and state law.

(4) Upon request, a party has the right to obtain a copy of the hearing record, including recordings of the hearing and file documents at no charge. [However, a party requesting a transcript of the hearing record shall pay the costs of the transcription.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2020.

TRD-202004175

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855


SUBCHAPTER D. AGENCY-LEVEL DECISIONS, REOPENINGS, AND REHEARINGS

40 TAC §§823.30 - 823.32, 823.34

The rules are proposed under Texas Labor Code, §301.0015 and §302.002(d), which provide TWC with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of TWC services and activities.

The proposed rules implement the appeal, complaint, and grievance provisions set forth in Texas Labor Code, Title 4, Subtitle B, Section 301.192, Texas Human Resources Code Section 44.002, as well as those set forth in 29 USC 3241 and 29 USC 3152.

§823.30.Hearing Decision.

(a) Following the conclusion of the hearing, the hearing officer shall promptly issue a written decision on behalf of the Agency. Decisions issued on state-level complaints and grievances, or appeals of local-level complaints and grievances, made pursuant to provisions of WIOA, must be issued within 60 calendar days of the filing of the complaint, grievance or appeal, whichever comes later.

(b) The Agency decision shall be based exclusively on the evidence of record in the hearing and on matters officially noticed in the hearing. The Agency decision shall include:

(1) a list of the individuals who appeared at the hearing, including representatives and observers;

(2) the findings of fact and conclusions of law reached on the issues; and

(3) the affirmation, reversal, or modification of a determination or Board decision.

(c) Unless a party files a timely motion for rehearing, the Agency may assume continuing jurisdiction to reconsider the issues on appeal, take additional evidence, and issue a corrected decision [to modify or correct a hearing decision] until the expiration of 14 calendar days from the mailing date of the hearing decision.

§823.31.Petition [Motion] for Reopening.

(a) If a party fails to appear for a hearing, the hearing officer may hear and record the evidence of the party present and the witnesses, if any, and shall proceed to decide the appeal on the basis of the record unless there appears to be good reason for continuing the hearing. A copy of the decision shall be promptly mailed to the parties with an explanation of the manner in which, and time within which, a request for reopening may be submitted. [If a party does not appear for an Agency hearing, the party has the right to request a reopening of the hearing within 14 calendar days from the date the Agency decision is mailed.]

(b) A party that fails to appear at a hearing may, within 14 calendar days from the date the decision is mailed, petition in writing for a new hearing before the hearing officer. The petition should identity the party requesting the reopening and explain the reason for the failure to appear. The timeliness rules in §823.3 of this chapter (relating to Timeliness) apply to the petition. The petition shall be granted if it appears to the hearing officer that the petitioner has shown good cause for the petitioner's failure to appear at the hearing. [The motion shall be in writing and detail the reason for failing to appear at the hearing.]

(c) The hearing officer may schedule a hearing on whether to grant the reopening.

(d) The hearing officer may deny the petition if no good cause is alleged for the party's nonappearance at the prior hearing. [The motion may be granted if it appears to the hearing officer that the party has shown good cause for failing to appear at the hearing.]

§823.32.Motion for Rehearing and Decision.

(a) A party has 14 calendar days from the date the decision is mailed to file a motion for rehearing. A rehearing may be granted only for the presentation of new evidence.

(b) Motions for rehearing shall be in writing and allege the new evidence to be considered. The appellant must show a compelling reason why the [this] evidence was not presented at the hearing and explain how consideration of the evidence would alter the outcome of the case.

(c) If the hearing officer determines that the motion does not meet the criteria in subsection (b) of this section, the hearing officer may issue a decision indicating that they have not been met and that no hearing will be set on the motion.

(d) [(c)] If the hearing officer determines that the appellant has met the requirements of subsection (b) of this section, the hearing officer shall grant the motion and schedule a hearing to consider the new evidence on the record [alleged, new evidence warrants a rehearing, a rehearing shall be scheduled at a reasonable time and place].

(e) [(d)] The hearing officer shall issue a written decision following the hearing to consider the evidence on the Motion for Rehearing.

(f) [(e)] After the hearing on the Motion for Rehearing, the hearing officer shall issue a written decision granting or denying the Motion for Rehearing and may affirm, reverse, leave in effect, void, or modify the prior decision. [The hearing officer may also issue a decision denying a motion for rehearing.] §823.34.Federal Appeals.

(a) Participants and interested or affected parties have a right to appeal to the US Secretary of Labor when decisions are not issued within the time prescribed or when an adverse final Agency decision is issued.

(b) The US Secretary of Labor will investigate appeals under the following circumstances:

(1) A decision on a grievance or complaint has not been reached:

(A) within 60 calendar days of receipt of the grievance or complaint; or

(B) within 60 calendar days of receipt of the request for appeal of a local level grievance and either party appeals to the US Secretary of Labor; or

(2) A state level decision on a grievance or complaint has been reached and the party to which such decision is adverse appeals to the US Secretary of Labor.

(c) Participants and interested or affected parties that wish to appeal to the US Secretary of Labor must adhere to the following time parameters:

(1) Appeals that are based on subsection (b)(1) of this section must be filed within 120 calendar days of filing the grievance or timely appeal with the state.

(2) Appeals that are based upon subsection (b)(2) of this section must be filed within 60 calendar days of receipt of the state-level decision.

(d) Appeals to the US Secretary of Labor must be submitted by certified mail with a return receipt requested. In addition to sending an appeal to the US Secretary of Labor, the party must also simultaneously provide a copy of the appeal to the opposing party and the US Department of Labor Employment and Training Administration regional administrator.

(e) This federal appeals process applies solely to noncriminal grievances and complaints under WIOA, Title I.

(f) This process does not apply to filing appeals regarding discrimination, or denial or termination of training provider eligibility, for inclusion on the Texas Eligible Training Provider List.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 7, 2020.

TRD-202004176

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: November 22, 2020

For further information, please call: (512) 689-9855